AG2016/7598, Transcript of Proceedings [2017] FWCTrans 426 (9 October 2017)

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PN5137

THE COMMISSIONER: Yes, Mr Wood.

PN5138

MR WOOD: Thank you, Commissioner. Thank you for the time you have afforded us this morning. Can I hand up an order in draft that we are going to ask you to make, Commissioner. It's got a couple of amendments in hand, but otherwise it's reasonably clear. It's one page double-sided and then it's got a schedule which has two pages single-sided. May I just explain the orders, Commissioner?

PN5139

THE COMMISSIONER: Yes.

PN5140

MR WOOD: The first order relates to exhibit R17 which is the marketing plan that was attached to Ms Bayliss' witness statement. The second order relates to the gross margin of the School of Arts, some evidence that was given by Professor Kersten. The third relates to some documents I am going to provide to the tribunal in a moment. And the fourth, you will see relates to the schedule which is attached. You might recall from exhibit A3 and also some other documents that there were many more claims made for deidentification of names. We have restricted the claims to persons very largely who are not being called as witnesses who are mentioned in the proceedings, have no opportunity of responding to what is said, and we do on legitimate grounds have some concerns for their wellbeing. That deals with the persons who are referred to as Ms P, Ms S and Ms B.

PN5141

Can I tell you that you asked a question about Ms P and you asked whether or not any application had been made by Ms P in the nature of an unfair dismissal. We can tell you, Commissioner, that Ms P was terminated on 9 June 2017. No application has been made, as far as we can tell, of the nature of an unfair dismissal, but there is a worker's compensation claim that has been made. And, Commissioner, you will see in relation to Mr Scasserra, we no longer press any claim in relation to the so called utility.

PN5142

Can I then move back to order 3, Commissioner. You will recall that before Mr Scasserra came to give evidence yesterday, we had heard an application made by our learned friends that we provide documents in an unredacted form to the Commission. Our learned friends were successful in that application and we provide the documents to you now. One is an unredacted memorandum to Darren McKee from Michelle Narustrang re request for approval, appointment of progressive employee relations dated 21 December 2016. That memorandum attaches a consultancy services agreement that relates to Mr Scasserra. I will hand up or provide to the Commission pursuant to the order that you made yesterday, Commissioner, that unredacted memorandum of 21 December 2016, and we also provide a redacted version of the same document.

PN5143

Can I also provide, pursuant to the order that was made yesterday, can I also provide to the Commission an unredacted memorandum to Darren McKee from Michelle Narustrang dated 16 February 2017 which is entitled "Variation to request for approval (appointment of progressive employee relates)." And attached to that memorandum is a consultancy services agreement that relates to Mr Scasserra and I will provide that both in an unredacted and a redacted form.

PN5144

Can I tell the Commission that order 3 of the draft orders that we have proffered to you today relate to those documents and we have no objection, of course, to the lawyers for the respondent inspecting those documents by you handing them to them, Commissioner, subject of course to order 3 being made in relation to those documents.

PN5145

THE COMMISSIONER: Is there anything else you want to tell me, Mr Wood?

PN5146

MR WOOD: No, Commissioner.

PN5147

MR KIRKWOOD: Commissioner, can I indicate the NTEU's position on the applicant's application?

PN5148

THE COMMISSIONER: Yes.

PN5149

MR KIRKWOOD: The NTEU does not oppose proposed order 1. It does not oppose proposed order 2. It does not oppose proposed order 3, and does not oppose proposed order 4 subject to what I understand to be the amendments in hand which is firstly in proposed order 4 to change the word "parties" appearing in the first line and the fourth line to "persons and entities".

PN5150

SPEAKER: "Or entities".

PN5151

MR KIRKWOOD: Sorry, "persons or entities" and in the schedule to delete as my learned friend, Mr Wood, said the row dealing with the utility. Commissioner, just in relation to proposed order 3, this order presently deals with the basis on which those documents are being made available to the lawyers for the NTEU for inspection. I anticipate that Mr Attiwill, my learned leader, will seek to tender those documents in the course of cross‑examination of Mr Scasserra, and I apprehend that at that point there will be an application by the applicant for, yes, a further order. So Commissioner, do you have on the back of your copy that has been handed up a proposed order 3A?

PN5152

THE COMMISSIONER: Sorry, can you say that again?

PN5153

MR KIRKWOOD: I understand on the copy that has been handed up there's a proposed order 3A. It's on the back of the schedule, I'm informed.

PN5154

THE COMMISSIONER: Handwritten in blue ink?

PN5155

MR KIRKWOOD: Yes.

PN5156

THE COMMISSIONER: Yes.

PN5157

MR KIRKWOOD: I'll just give you a moment to read that, Commissioner, and I'll just address briefly what is contemplated by that order.

PN5158

THE COMMISSIONER: Yes, I've read that. Thank you.

PN5159

MR KIRKWOOD: So I anticipate that my learned leader, Mr Attiwill, will in the course of cross‑examination seek to tender the unredacted copies of Mr Scasserra's contractual documents and it's intended that order 3A will protect the confidentiality of the unredacted version of the documents, and on that basis the NTEU would not oppose an order in those terms. Because of course there is also material in those documents that's unredacted, what we would propose to do is to also tender a copy of the redacted documents, and that the unredacted versions would be a non-confidential exhibit. So that you would know, Commissioner, precisely what is public and what is intended to be confidential. If that's satisfactory to you, Commissioner?

PN5160

THE COMMISSIONER: The approach is satisfactory but I'm wondering whether the 3A order which is on the back of the schedule, handwritten, distinguishes between the redacted document and the unredacted document? Because as I understand the parties' position the unredacted - sorry, the redacted document will form part of the record as available for public inspection and so forth in due course.

PN5161

MR KIRKWOOD: As I understand it it's intended that once the unredacted copy is given an exhibit number then that order would refer to that exhibit number, much as proposed order 1 does. So I think the - - -

PN5162

THE COMMISSIONER: So the document will be identifiable as the unredacted document?

PN5163

MR KIRKWOOD: That's right, and so it would say something like "The document tendered as R".

PN5164

THE COMMISSIONER: That's helpful.

PN5165

MR KIRKWOOD: Yes.

PN5166

THE COMMISSIONER: Thank you.

PN5167

MR KIRKWOOD: If the Commission pleases.

PN5168

THE COMMISSIONER: I just would like a moment just to read number 4 please. Four, amongst other things, seems to put the Tribunal to some degree of administrative work to achieve it. But putting that to one side - - -

PN5169

MR WOOD: We can take - sorry.

PN5170

THE COMMISSIONER: Well, I'm not sure you can.

PN5171

MR WOOD: We can take care of the administration, Commissioner.

PN5172

THE COMMISSIONER: Because it's scattered all through any number of exhibits and so forth. I'm not bothered, I'm just making an observation.

PN5173

MR WOOD: We expected that we would give you a list of where all the changes should be, Commissioner. That we'd undertake that work.

PN5174

THE COMMISSIONER: That would be helpful. Gentlemen, I understand this is by consent. I think given the principles of open justice, just tell me why I should in particular - I have no difficulty with one, two and three and three A. They as far as I'm concerned are justified on the basis of commercial confidentiality, in shorthand. Explain to me why I should issue order 4 please?

PN5175

MR WOOD: I think to do that, Commissioner, we'd have to adduce some very short evidence.

PN5176

THE COMMISSIONER: I'm interested in a submission on this.

PN5177

MR WOOD: In the submission?

PN5178

THE COMMISSIONER: Yes please.

PN5179

MR WOOD: The submission in relation to Ms P. Ms S and Ms B is that the applicant has some well-founded concerns about the state of those three persons and the extent to which publication of the matters that people in this proceeding have given evidence about might cause to their state. Now I could be more explicit if you want, Commissioner, but that's the basis for those three persons and as I say, it's well-founded.

PN5180

THE COMMISSIONER: All right, so that submission in effect is their personal concerns of being identified in these proceedings go well beyond discomfort, embarrassment and those normal exclusions but rather as a much more serious concern.

PN5181

MR WOOD: Much more serious.

PN5182

THE COMMISSIONER: Understood.

PN5183

MR WOOD: In relation to Mr Scasserra, again he's about to come to give evidence and he is the best person to justify those claims in relation to his former employers. He could be asked about that, but as I understand things the evidence he gives concerns his confidential dealings with each of those entities. Now obviously some of the outworkings of those confidential dealings have resulted in public documents. He was cross‑examined on three of them yesterday. As I understand things, the things that sit behind those public documents, that is, what he was asked to do is in fact confidential and he's perhaps the best person to justify that, Commissioner, because it's not really - the applicant is doing this for Mr Scasserra in relation to in truth his claims for confidentiality over that material.

PN5184

THE COMMISSIONER: I understand. All right, thank you for that. Is there anything you want to add, Mr Kirkwood, at all?

PN5185

MR KIRKWOOD: Very briefly, Commissioner. If I could just clarify that the position of the NTEU is one of non-opposition rather than consent to this application, and in practical terms that may not make a difference, but if I can just explain briefly - - -

PN5186

THE COMMISSIONER: I don't think either makes a difference, but that's (indistinct). I have to make a decision, Mr Kirkwood.

PN5187

MR KIRKWOOD: Quite so, Commissioner. For example in the case of Mr Scasserra's clients really the reason we are not opposing that is we agreed at the time the identities of these clients were provided to us by the applicant some weeks ago that we would proceed in this way. So we are essentially honouring that agreement and not opposing this order. We haven't seen the confidentiality arrangements so we can't form an independent view about that. It's ultimately a matter for you, Commissioner.

PN5188

THE COMMISSIONER: Very well, thank you. All right, gentlemen, I am satisfied based on what has been said to me that I should make orders in the terms that the parties have put before me, and in due course I will do so. Just in terms of the sequencing in practical terms if we are going to proceed with Mr Scasserra's evidence now I am not going to have issued an order. It depends on your view on that perhaps. Mr Attiwill, sorry, you want to say something about that?

PN5189

MR ATTIWILL: One convenient course, Commissioner, might be, and I raised this with Mr Wood, is that we could tender the documents now and then you could make an order before Mr Scasserra goes into the witness box, just so you don't have to interrupt that and it might be a convenient course.

PN5190

THE COMMISSIONER: No, that's fine. In effect I will just orally make an order in the terms of paragraph 3 of the draft order you have provided.

PN5191

MR ATTIWILL: Yes.

PN5192

THE COMMISSIONER: Let's perhaps just go through that process and then you can move on.

PN5193

MR ATTIWILL: So the first document that I would seek to tender � Mr Wood did provide me with a redacted version of the memorandum which is dated 21 December 2016, and I would seek to tender that.

PN5194

THE COMMISSIONER: I am sorry, the redacted or unredacted?

PN5195

MR ATTIWILL: I thought I would just deal with the redacted versions first, the redacted version of the memorandum dated 21 December. We drew our attention to our learned friends, and I want to make sure that your copy does this, but if you turn to page 12 of 13 right at the back, the second last page, the copy provided to me did not have at item 10 "Payments. Item 1 rate per day" redacted. Has that been now changed on your - - -

PN5196

THE COMMISSIONER: No, it's visible on mine as well.

PN5197

MR ATTIWILL: So that I understand is sought to be redacted because otherwise it makes the rest of the redactions otiose.

PN5198

THE COMMISSIONER: We will apply the black felt tip pen to that. Thank you.

PN5199

MR ATTIWILL: And then would it be convenient then � well, I tender that document.

EXHIBIT #R52 REDACTED REQUEST FOR APPROVAL APPOINTMENT OF PROGRESSIVE EMPLOYEE RELATIONS MEMORANDUM DATED 21/12/2016

PN5200

Then would it be convenient now, Commissioner, to tender the other redacted, or it doesn't matter?

PN5201

THE COMMISSIONER: Whatever suits you.

PN5202

MR ATTIWILL: I will just tender the redacted copy of the memorandum dated 16 February 2017.

EXHIBIT #R53 REDACTED VERSION OF MEMORANDUM RE VARIATION TO REQUEST FOR APPROVAL APPOINTMENT OF PROGRESSIVE EMPLOYEE RELATIONS DATED 16/02/2017

PN5203

Excuse me, Commissioner, it's just that the redacted version that I believe has been handed to you, Commissioner, is a document that is different to the redacted version that had been previously discovered. It's got other documents in it that I had not seen previously. So I was asked to hand that back, which - - -

PN5204

THE COMMISSIONER: That's helpful. I had wondered, but - - -

PN5205

MR ATTIWILL: I handed that back and now I don't have a copy.

PN5206

THE COMMISSIONER: That's helpful for the record as well. Thank you.

PN5207

MR ATTIWILL: Yes. Because I handed only a document that was a few pages long. If I did get a copy I might be able to make another observation to you, Commissioner, that could assist you.

PN5208

THE COMMISSIONER: Are we talking about R53 or R52?

PN5209

MR ATTIWILL: R53.

PN5210

THE COMMISSIONER: Why don't you have a look at my copy and draw to my attention what I need to know about it.

PN5211

MR ATTIWILL: Thank you. This is now a different document to the one shown to me when I came to court, so I don't know what's going on. Can I just make this plain, I was shown a document that had a further agreement dated, I believe, March of this year, and it was a thicker document and so I call for the document that was provided to me when I came to the Commission today, because this is different.

PN5212

THE COMMISSIONER: Gentlemen, this goes to the discussions you have had privately before we resumed the proceedings this morning. It sounds to me like we better have a brief adjournment while you try and resolve whatever has occurred.

PN5213

MR ATTIWILL: It might make it just more convenient.

PN5214

THE COMMISSIONER: Just for the record you're holding exhibit R53.

PN5215

MR ATTIWILL: I might hand that back.

PN5216

THE COMMISSIONER: That's probably safest if I can put it that way in terms of my paperwork not becoming too disorderly.

PN5217

MR ATTIWILL: Can I tell you that apart from getting these documents in order I don't intend to cross-examine Mr Scasserra extensively on them at all, I only intend to ask him a few questions, but it's just if we get the chronology right then we are right to go.

PN5218

THE COMMISSIONER: All right. We will adjourn now and advise my associate in due course when we are ready to proceed, please, gentlemen.

PN5219

MR ATTIWILL: Thank you. Yes.

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RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.23 AM]

PN5220

THE COMMISSIONER: Where did we get to, Mr Wood?

PN5221

MR WOOD: Commissioner, the document that you have marked as R52 and the document that you have marked as R53 conform with the order that you made yesterday other than in two respects. One, both of these documents are redacted because we haven't got to the unredacted versions yet. And, two, exhibit R53, doesn't have pages 2 of 13 through to 9 of 13, but they seem to be in the same form as pages 2 of 13 to 9 of 13 in R52. That's all I need to say about the documents that we have provided to the Commission pursuant to the order.

PN5222

Before you came onto the Bench, I gave my learned friend a copy of the unredacted version of R52. That had attached to it, that is the version I gave to my learned friend, another draft. It's unclear exactly what it was. It may be a variation to the original memorandum. The dates on this document don't conform with each other because the date of the memo is 13 March 2016, but it relates to something that was supposed to happen from 21 December 2016 to 25 August 2017. But be that as it may, my learned friend asks you to make any orders in relation to any further memoranda of the type that have been provided in redacted form as R52 and R54. We will comply with that order as soon as possible, but, presently, we don't believe there are any.

PN5223

THE COMMISSIONER: So I am clear, in the background, a document was provided to Mr Attiwill that from your perspective isn't relevant, but you're not quite sure where it came from or what it's all about.

PN5224

MR WOOD: That's correct and if it does turn out - if my learned friend wants to ask for any other additional memoranda of the type, executed memoranda that is of the type referred to in R52 and R53 then, of course, that order will issue and subject to any confidentiality issues surrounding such a document if one exists, we will produce one.

PN5225

THE COMMISSIONER: Mr Attiwill.

PN5226

MR ATTIWILL: Thank you, Commissioner. Yes, thank you, Mr Wood. I would seek an order in these terms, Commissioner. I would seek an order that the applicant discover any further memoranda concerning the terms of the engagement of Mr Scasserra and/or of Progressive Employee Relations which I understand that my learned friend doesn't oppose from what he - - -

PN5227

MR WOOD: We don't oppose and we would be able to comply with that by, say, 2 o'clock today.

PN5228

THE COMMISSIONER: I am willing to make an order in those terms off the Bench. So, Mr Wood, if those documents can be provided that would be helpful. All right, Mr Attiwill, we have exhibit R52 marked.

PN5229

MR ATTIWILL: Yes.

PN5230

THE COMMISSIONER: 21 December 2016.

PN5231

MR ATTIWILL: That's right, and then we have got - - -

PN5232

THE COMMISSIONER: We have exhibit R53 marked.

PN5233

MR ATTIWILL: Yes.

PN5234

THE COMMISSIONER: Which is 16 February 2017.

PN5235

MR ATTIWILL: Yes, and then the only issue there, and my learned friend did draw your attention to it, is that there you will see that if you turn the page just to the consultancy services agreement, Commissioner, you will see it's page 1 of 13.

PN5236

THE COMMISSIONER: Which exhibit am I looking at?

PN5237

MR ATTIWILL: Sorry, Commissioner, you're looking at R53.

PN5238

THE COMMISSIONER: It's missing some pages.

PN5239

MR ATTIWILL: Just missing some pages which is the consultancy services agreement. You will see in the bottom right corner of that it's page 1 of 13 and when you turn the next page, it's 10 of 13. I'll just ask a few quick questions of Mr Scasserra hopefully to clarify that it's in the same form as the one that's attached to exhibit R52.

PN5240

THE COMMISSIONER: All right.

PN5241

MR ATTIWILL: So just to complete the tendering then, Commissioner, I would tender the unredacted version of R52 being the memorandum of 21 December 2016.

PN5242

THE COMMISSIONER: Which we will mark as exhibit R54.

EXHIBIT #R54 UNREDACTED VERSION OF EXHIBIT R52, MEMORANDUM OF 21/12/2016

PN5243

MR ATTIWILL: Then, similarly, Commissioner, I would tender the unredacted version of exhibit R53, being 16 February 2017.

PN5244

THE COMMISSIONER: Which we will mark as exhibit R55.

EXHIBIT #R55 UNREDACTED VERSION OF EXHIBIT R53 BEING 16/02/2017

PN5245

MR WOOD: Pursuant to the - I shouldn't say the agreement, but the no opposition of our learned friend's, we understand that R54 and R55 will be subject to the order proposed as 3(a). That is until further order the documents, R54 and R55 in these proceedings should be kept confidential and not disclosed, made public or used for any other purpose other than the course of these proceedings.

PN5246

THE COMMISSIONER: Yes, I understood that to be the case.

PN5247

MR WOOD: Commissioner, we can undertake to provide by lunchtime this order that you've made orally in terms of order 3, but also the rest of the order in a final written form to you, and also we will undertake to engage in the administrative task required by order 4 by no later than close of business Friday.

PN5248

THE COMMISSIONER: I'd appreciate that. That's helpful, thank you.

PN5249

MR ATTIWILL: So that just leaves the continuation of the cross‑examination of Mr Scasserra, Commissioner.

PN5250

THE COMMISSIONER: Yes, if he's still here.

PN5251

MR ATTIWILL: Yes, that's right.

<DANIEL SCASSERRA, RECALLED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.30 AM]

CROSS-EXAMINATION BY MR ATTIWILL牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.30 AM]

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PN5252

THE COMMISSIONER: Yes, Mr Attiwill.

PN5253

MR ATTIWILL: Thank you, Commissioner. Could Mr Scasserra please be shown exhibit R54.

PN5254

Mr Scasserra, you'll see that the document that I've provided to you is a memoranda, an internal memoranda of Murdoch University?‑‑‑Yes.

PN5255

And you have not seen that document before, I take it?‑‑‑No I haven't. No.

PN5256

And if you could turn the page then just to the third page of that document you'll see that there's a Consultancy Services Agreement?‑‑‑Yes.

PN5257

And that agreement is 13 pages?‑‑‑Yes.

PN5258

And what I'd like you to do, could you go to page 10 please and you'll see that that is signed by Mr McKee on behalf of Murdoch University?‑‑‑Yes.

PN5259

And then it has also got attached to that, which is part of the 13 pages, a schedule?‑‑‑Yes.

PN5260

And you'll see the commencement date and also the completion date?‑‑‑Yes.

PN5261

And a description of you in item 6 and a description of the services. Do you see that?‑‑‑Yes I do. Yes.

PN5262

Is this a copy of the Consultancy Services Agreement that you also signed and were bound by?‑‑‑It looks familiar, yes. I had two put in front of me. One was like an initial draft and then from memory - I can't exactly recall because we had a bit of to‑ing and fro‑ing on obviously the terms of the agreement, I had some questions. But it looks familiar. It looks like the one I signed, yes.

PN5263

So just to be clear, this is a copy of the Consultancy Services Agreement that you did sign?‑‑‑Well, it's not signed by me.

PN5264

I know?‑‑‑But if it's the same one that I actually signed, it looks the same. That's what I'm saying, yes.

PN5265

Yes, it's in the same terms?‑‑‑It's in the same terms. Yes.

PN5266

Right, and if I could just take you briefly just to the schedule for a moment?‑‑‑Yes.

PN5267

It has got a commencement date of 21 December 2016. Did you actually start in January, is that right?‑‑‑No, I did a couple of days in December, and I think it was two days I did. A lot happened around that time. I was busy with other clients, so I remember doing two days.

PN5268

As the interim replacement employee or as the consultant doing the bargaining?‑‑‑I think I came in to see MinterEllison, to be honest, for the two days.

PN5269

Right, okay?‑‑‑Yes.

PN5270

And then you see there it has got a completion date of 25 August 2017?‑‑‑Yes.

PN5271

I'll take you to what I understand to be a further version of that, but could you tell the Commissioner does that remain your completion date?‑‑‑I don't know. I haven't had that confirmed because I'm getting close to the amount of days, because the contract contemplates the amount of days as well.

PN5272

Yes, but to your knowledge that completion date hasn't been extended yet, has it?‑‑‑No it hasn't. No.

PN5273

And you'll see that in - if I could just take you to the services, and I only want to ask a few questions in relation to this agreement. But you see in paragraph 2 it says:

PN5274

In consultation with Ms Narustrang, key stakeholders and any external legal support

PN5275

It says:

PN5276

strategise, plan, lead and deliver future employee relations duties/tasks to support the application for termination of an enterprise agreement after its nominal expiry date

PN5277

And then it refers to the relevant section of the Fair Work Act and then says "in line with Murdoch's organisational objectives"?‑‑‑Yes.

PN5278

Part of your work in providing those services has been providing these two statements in the Commission. Is that correct?‑‑‑The statements I provided to the Commission?

PN5279

Yes?‑‑‑Yes.

PN5280

Yes, and what I want to put to you is that in providing those statements you've done so as an advocate for Murdoch in support of the application. You agree with that?‑‑‑Yes.

PN5281

Now could I just ask you to clarify just a few matters. So I was asking you questions yesterday about in effect wearing two hats. One is as the interim manager and then the other one is as a consultant within your company?‑‑‑Yes.

PN5282

Now could you tell the Commissioner who Luckshaw Consulting is to your knowledge?‑‑‑I don't know who Luckshaw Consulting is.

PN5283

Right, so you don't know that they - were they previous consultants retained by Murdoch before you?‑‑‑It may be an individual that was working there. I'm not - I don't know the name of this company.

PN5284

Right?‑‑‑So there was another consultant. So to simplify it for you, there was another consultant. When I started at Murdoch there was another consultant working.

PN5285

Yes?‑‑‑And one of the reasons I was involved in the bargaining was that consultant was taking leave.

PN5286

You attended bargaining meetings on 24 and 31 January of this year?‑‑‑I did, yes.

PN5287

And could I just ask you, when you attended those bargaining meetings were those you attending those in your capacity as the consultant or in your capacity as the interim employee?‑‑‑That's a good question but I suppose when - from my point of view the - I don't know how to respond to that.

PN5288

Yes?‑‑‑In terms of my understanding what the client was wanting from me was - when I went to that meeting, was to lead negotiations on behalf of the university from a HR point of view.

PN5289

Right, but were you paid different rates for each of those tasks; you were, weren't you?‑‑‑I was, yes.

PN5290

And are you able to tell the Commission - and I don't want to ask you about the details of them?‑‑‑Yes.

PN5291

But you've obviously rendered an account in relation to the services you provided in attending those bargaining meetings?‑‑‑Yes.

PN5292

And to your recollection did you render your account as a consultant or as an interim employee at that point?‑‑‑I did my - when I did my billing for the work that I did I just did it based on the hours that I worked.

PN5293

Right, okay?‑‑‑So on one invoice, for example.

PN5294

Yes. Now could you please go to paragraphs 53 to 54 of your first statement, which is at Commission book 2021 in volume 4?‑‑‑Yes.

PN5295

And do you see at paragraph 53 you say:

PN5296

Additionally in the meetings I attended, the NTEU was very focussed on the draft clauses. Again, this is an unusual approach.

PN5297

And then you set out what you consider to be a usual approach to bargaining. Do you see that?‑‑‑Yes, I'm reading it.

PN5298

So:

PN5299

The usual approach to bargaining and one I have adopted in a majority of previous negotiations I have been involved in, including with other unions, is to discuss concepts, reach in principle agreement and leave the drafting of clauses to last.

PN5300

?‑‑‑Yes.

PN5301

And you say:

PN5302

The NTEU appears to take a very clause by clause approach to bargaining. This has meant that the bargaining meetings are not as efficient as they should be.

PN5303

Then if you turn the page you talk about Murdoch's focus, and that was on removing productivity impediments. Do you see that?‑‑‑Yes.

PN5304

Now when you commenced work and you attended on MinterEllison at the end of December 2016, at that point you were aware, weren't you, that Murdoch had made an offer on 23 November 2016 to the union?‑‑‑At what point were you - just to clarify?

PN5305

Yes, the date - that Murdoch had made the offer on 23 November 2016 about a month before you started work?‑‑‑In December, are you asking me? At that point?

PN5306

Yes, when you start work in December. That's right. That Murdoch had made an offer on 23 November. I'll take you to it?‑‑‑Yes I - Yes, no, I was aware. Yes, I believe I was aware from my recollection.

PN5307

Yes. Yes, and if I could take you to it. It's at Commission book 2078 in that volume?‑‑‑Yes.

PN5308

And to your knowledge this was - when you started working in your capacity as the consultant for Murdoch this was sort of the latest position that the university had set out, wasn't it?‑‑‑That was the position on the table.

PN5309

Yes?‑‑‑But just to clarify, when I had started I wasn't involved directly in the bargaining on the very first few meetings.

PN5310

Yes, I am not suggesting that at the moment?‑‑‑I was ER manager, there was another consultant involved with the bargaining. So it wasn't until closer to the bargaining that I came in.

PN5311

Yes, once you started and familiarise yourself and then you attend the bargaining meetings as you have said at the end of January, and I will take you through this - - -?‑‑‑Yes, it wasn't told immediately to me that I would be leading that bargaining on that when I started, so it wasn't in front of mind, but I did some research into what was happening at Murdoch and Murdoch gave me information about what was happening.

PN5312

But I still nonetheless want to ask you some questions about this, because as you said it was the latest offer that the university put on the table. The document at 2078 has a number of attachments. Do you see that?‑‑‑Yes, I do.

PN5313

The evidence is that this document is as you have described it dated 23 November 2016?‑‑‑Yes, I'm familiar with that date.

PN5314

You see at the end of the first paragraph the final sentence above the table it says:

PN5315

As discussed this offer is a package deal that includes acceptance of the university's bargaining position to date.

PN5316

?‑‑‑Yes.

PN5317

Then you will see that what it does is attach a number of clauses, doesn't it?‑‑‑It does, yes.

PN5318

And without holding me too much to my mathematics there's about 36 of them?‑‑‑That sounds about right, yes.

PN5319

You would agree with me, wouldn't you, that that document demonstrates that Murdoch was at that time focused on, very much focused on draft clauses, wasn't it?‑‑‑Obviously their offer was full of draft clauses, yes.

PN5320

Pardon?‑‑‑Their offer that they put was full of draft clauses, yes.

PN5321

So you would agree with me that it wouldn't be fair to criticise then the union for responding to that package deal on a clause by clause basis; you couldn't criticise the union for that, could you?‑‑‑Yes, I would agree with you, yes, on that � on that basis.

PN5322

Now, when you started at Murdoch the university had already commenced the application, hadn't it, filed the application that we're dealing with now?‑‑‑Yes.

PN5323

And you're aware that at the time also too that it also had commenced and was prosecuting an action in the Federal Court of Australia, which it had joined the union and two union officials?‑‑‑I did hear about that, yes.

PN5324

Just a few brief questions in relation to that. Have you been involved in any bargaining in any of your previous roles, and you have mentioned some of them in your first statement, in which the employer had commenced an application to terminate at the same time that it was engaged in bargaining?‑‑‑No, I haven't.

PN5325

Have you ever been involved in any bargaining where the employer had commenced a legal proceeding in a Federal or State court, and not seeking relief in the Fair Work Commission, in a Federal or State court against the union or any of its employees in relation to matters related to the bargaining?‑‑‑Not a formal proceeding.

PN5326

How much time do you estimate that you have spent in relation to this application to terminate the agreement, you yourself?‑‑‑A lot of time was spent obviously on my statements, most of the time has been spent, and getting my head around obviously all the issues, doing some research. Some of that work's been coinciding with other work that I've been doing at Murdoch. So, you know, as I've � as I've been at Murdoch and I've been doing that work obviously I'm learning things.

PN5327

And using your best efforts what estimate would you put on the time that you have spent or dedicated to these proceedings in the application to terminate the agreement?‑‑‑It's changed over time, so obviously now I'm spending a lot of time, I'd say 80 per cent of my time on this obviously, but when I'd started it wasn't my priority. I spent a lot of time on bargaining and non-bargaining matters, day to day HR issues.

PN5328

But as we are here today what I'm asking you to give is a total estimate to the Commissioner of the total time that you would have spent, an estimate?‑‑‑Okay. Let me � I'm just thinking about it � 30 to 40 per cent.

PN5329

How many equivalent days would that be?‑‑‑I can't � I can't recall how many days I've done at Murdoch. You appreciate I have other clients, I have a number of other clients and a lot of days, so I couldn't put a number on it from my memory.

PN5330

Thirty days of full-time work in relation to this matter?‑‑‑No, that sounds a little bit high.

PN5331

Twenty?‑‑‑Possibly 20.

PN5332

What about your observations of other persons at Murdoch, to your knowledge how much time do you think Ms Narustrang might have spent in relation to this application?‑‑‑I don't see Michelle every day so it's hard for me to give � give a view. I'm not at Murdoch full-time.

PN5333

To your knowledge have you observed that the application itself, so separate to the bargaining, has been a distraction of the university from the people that you have observed?‑‑‑What do you mean by distraction?

PN5334

That is that they have had to spend time in relation to the application rather than doing their usual work?‑‑‑The whole process has been including the bargaining with determination, yes.

PN5335

I was asking you questions about this document at Commission book 2078, do you still have that handy?‑‑‑I've got it in front of me, yes.

PN5336

I just want to ask you at the moment just about some of the documents that we have got that evidence the bargaining, and then I will come to the two meetings that you address in your statement and some of the things you say about them, but could you, please, then go to Commission book 2174, it's in the same volume?‑‑‑Yes.

PN5337

You are familiar with this document, aren't you?‑‑‑I am familiar with it, yes.

PN5338

This was a document that was tabled at the meeting?‑‑‑It was provided during the meeting, yes, and also it was emailed to us after the meeting.

PN5339

And you're familiar with how this document works obviously, just quickly in the left-hand column it sets out the claim being made, so here managing organisation change, MU, Murdoch University, and then the union's position?‑‑‑Yes.

PN5340

And it goes through all the matters that are set out. Just quickly looking at it you will see that going down through the issues in relation to item 8 "Excess leave cash out annual leave", that was a claim that the university made?‑‑‑Yes.

PN5341

And agreed to by the union, that accords with your recollection, doesn't it?‑‑‑It does, yes.

PN5342

And similarly in relation to item 9?‑‑‑Yes.

PN5343

And item 12, it accords with your recollection, "Professional study leave, claim made by the university and agreed to by the union"?‑‑‑I'd have to go back and review my notes, but I believe it was agreed.

PN5344

Then just similarly quickly over the page in relation to the claims being made by the university at items 21 and 22?‑‑‑Yes.

PN5345

That accords with your recollection?‑‑‑Yes, they were agreed I believe.

PN5346

And then just similarly just dealing with them as a block items 25, 30, 38 were all agreed by the union, those claims?‑‑‑Yes, I believe they were, yes.

PN5347

Then similarly if you could just quickly where it has in the right-hand column starting at Commission book 2174 you will see that sometimes it says agreed, but then it has some words. So that for example with the first one "Managing organisation changes" it says:

PN5348

Agreed subject to restoration of the obligation to consult with the NTEU and the trigger for consultation being definite proposal.

PN5349

?‑‑‑That's the union position, it wasn't Murdoch's understanding of that � of that matter.

PN5350

No, that's correct. So here there was a claim made by the university?‑‑‑Yes.

PN5351

And then the union position is agree � but let me finish the question just so that I can put it in proper context � this is recording that the union agrees, but then it's subject to the condition that the union is now imposing, was unacceptable to Murdoch?‑‑‑Yes, but my take away of that it wasn't agreed.

PN5352

Yes, that's right, correct. It's in effect what some lawyers would call a counter offer?‑‑‑Yes, you could put it that way.

PN5353

And similarly there's a number of those matters that are the subject, if you like using the term a counter offer, so that if you turn the page at item 19 it says:

PN5354

Agreed NTEU will accept clauses 67 and 68 being moved into policy.

PN5355

So it's sort of setting out what it wants to do, but then obviously the university will have to make a response to that, if you like a new demand?‑‑‑Yes.

PN5356

Could Mr Scasserra be shown exhibit R5, please. Similarly you have seen this document before, Mr Scasserra?‑‑‑I have, yes, it was handed to me by the union in a meeting.

PN5357

It sets out obviously a without prejudice settlement offer dated 27 April 2017?‑‑‑Yes.

PN5358

And it sets out a number of matters including two additional clauses. Well, I should say an intellectual freedom clause on the second page and a misconduct and serious misconduct clause?‑‑‑And change management.

PN5359

Yes, change management and unsatisfactory performance and so forth?‑‑‑Yes.

PN5360

If you could go then, please, to Commission book 2473 which is in volume 4 and have you got that there, Mr Scasserra?‑‑‑I do, yes.

PN5361

You have seen this letter and its attachment previously, haven't you?‑‑‑I have, yes.

PN5362

In fact, were you involved in the drafting of it?‑‑‑I had some say in it. I wasn't the principal drafter.

PN5363

You had some say in it obviously before it went out?‑‑‑Yes.

PN5364

You see that in relation to the letter at Commission book 2473 in the third paragraph, it said:

PN5365

The university's response is provided in attachment 1 of this letter. On 28 April 2017, the NTEU sought our commitment not to share the detail of your settlement offer until we meet again. The university will continue to honour this agreement.

PN5366

Then just turning the page for a moment, you will see that there is attachment 1 at Commission book 2474?‑‑‑Yes.

PN5367

It's headed: "Without prejudice. Murdoch University response to NTEU position tabled 28 April 2017"?‑‑‑Yes.

PN5368

It sets out, obviously, the university's position. Just going back to Commission book 2473, about halfway down the page, start with the paragraph that I read to you. It says:

PN5369

In addition to responding to the NTEU's revised position, the university tables the attached revised and additional bargaining positions for the future enterprise agreement under negotiation between the parties in attachment 2.

PN5370

If you could go to that which is at page Commission book 2478?‑‑‑Yes.

PN5371

You will agree with me that those matters hadn't been previously raised with the union as part of the bargaining; is that correct?‑‑‑Some of the additional positions we had put, yes, they hadn't been raised.

PN5372

They are raised for the first time in this letter in this attachment?‑‑‑Yes, so for example, where we said we want a complete redraft, that would be an example of that.

PN5373

I just want to ask you some questions about the - let me just ask you some questions about that for a moment. You have been employed and working at Murdoch for over six months?‑‑‑Yes.

PN5374

In your first statement, and I won't take you to it unless you need me to, but at paragraph 48 of your first statement, you refer to the need to address what you term Murdoch's financial sustainability?‑‑‑Yes.

PN5375

And that it can't wait, do you recall that?‑‑‑Yes.

PN5376

In that context, just asking you firstly, have you taken any step to draft a complete redraft of the enterprise agreement?‑‑‑We've done some background work around that, yes.

PN5377

Could you tell the Commissioner what that is?‑‑‑So, we reviewed all the clauses in the current agreement and we are looking to see where we can simplify the agreement, like harmonise clauses. In the position we have put obviously back to the union in that document, attachment 2, it refers to that we would retain all entitlements, so obviously we would look to retain entitlements such as academic freedom and indigenous employment. But there is a number of repetitions in the agreement that relate to professionals or academics, so we have been looking at the structure and how we can simplify that structure.

PN5378

How advanced is that drafting?‑‑‑It's still in its early stages.

PN5379

Just asking you the question, I mean, given the fact that you want or that the university, rather, wants a complete redraft of the enterprise agreement, isn't it urgent that such a draft would be completed and provided to the union as soon as possible?‑‑‑I don't think we've reached that stage yet.

PN5380

Is there a timeline as to when you would expect to reach that stage?‑‑‑Well, for me, we'd have to understand how we're going on the larger ticket items and to date we have not agreed on those items, particularly the important ones for the university. So it'd be a bit unusual to present a draft agreement when we haven't reached agreement on those big items.

PN5381

Has that drafting stopped then?‑‑‑No, the work continues because we need to prepare, I suppose, like any side would prepare their positions.

PN5382

That will continue, but you will still then continue to negotiate with the union; is that right?‑‑‑We are obliged to under law.

PN5383

Pardon?‑‑‑We are obliged to negotiate with the union.

PN5384

You say obliged, what do you mean by that?‑‑‑Well, from my understanding, obviously, as good faith bargaining, we would have to continue to meet with the union. Obviously, the university also wants to bargain with the union to try to reach a deal.

PN5385

Just so that we make it plain, when you use the term "obliged", you are not suggesting that you are just sort of going through the machinations of it?‑‑‑No, I'm not suggesting that at all.

PN5386

So what are you suggesting by using the word "obliged"?‑‑‑I believe I clarified that.

PN5387

You gave evidence in your statement that you attended two meetings on 24 and 31 January?‑‑‑Yes.

PN5388

You annex notes to your statement that were made by someone within People and Culture?‑‑‑Yes.

PN5389

Those notes are in the fourth volume at Commission book 2329. I think I've got this right, but if you have got that, Mr Scasserra, you will see that Commission book 2329 deals with meeting notes made on 24 January of this year?‑‑‑Yes, yes.

PN5390

Then just placing maybe your finger there or a placeholder so you don't lose the page, but then you will see at Commission book 2380. Let me just see that I've got this right. Excuse me, Commissioner. Sorry, 2351, rather. You have got then the meeting notes for 31 January 2017?‑‑‑Yes.

PN5391

Then you also attach some meeting notes at 2380 in relation to 28 April?‑‑‑Yes.

PN5392

Just a few questions about that. Do you agree with me that upon a reading of those notes that they demonstrate that the participants are productively engaged in bargaining?‑‑‑What do you mean productively engaged?

PN5393

That all the participants, when one reads the notes, are engaged, they are engaged in bargaining?‑‑‑We absolutely engaged in bargaining, yes.

PN5394

When I used the word "productively", I mean that an ordinary reading of the notes showed that both parties are putting their points of view and exchanging ideas?‑‑‑On that - on that definition, I'd say, yes.

PN5395

And, yes, not in the context that when productive, that is that outcomes are necessarily being achieved and what I want to put to you is that on a reading of those notes, they show that both parties are engaged in good faith bargaining?‑‑‑Yes.

PN5396

Do you agree that at one point during the meeting on 24 January 2017, you personally thanked the union for its revised position?‑‑‑I did, yes.

PN5397

You agree with me that at point during the meeting on 21 January 2017, you also personally acknowledged the movement that the union had made in bargaining?‑‑‑Yes.

PN5398

At paragraph 2 of your second statement at paragraph 15, and this is in Commission book volume 4, so if one goes to volume 4, Commission book page 2306, paragraph 15, you say this:

PN5399

The starkest example of the NTEU's obstructive and difficult attitude at the bargaining meetings I attended in January 2017 was its position on wage increases in any new agreement.

PN5400

Then you say:

PN5401

The NTEU's claim was for a 15 per cent increase over the life of the new agreement, which I understood to be Mr Cousner referred to as an ambit claim.

PN5402

So you understood that to be an ambit claim?‑‑‑Yes, I think McCulloch said it as well, Mr McCulloch.

PN5403

Then you say:

PN5404

The NTEU indicated that they were prepared to change on the 15 per cent wages position. When I pressed it the NTEU would not say what it would accept in terms of wages outcome for any new agreement, instead much of the time the NTEU asked questions about different peripheral matters.

PN5405

?‑‑‑Yes.

PN5406

It remains your evidence that that's the starkest example?‑‑‑Yes.

PN5407

What you describe as the NTEU's obstructive and difficult attitude?‑‑‑Yes.

PN5408

I just wanted to ask you some quick questions just about this issue, and if you could, please, go to Commission book 2363 in volume 4, and what I am going to do is to provide what I call an aide memoire, but just an extract of that which is highlighted because it's got no pinpoint referencing?‑‑‑Yes, I understand.

PN5409

And one for the Commissioner. I don't seek to tender this, Commissioner, it's just so that I can describe what I am taking Mr Scasserra to a bit more readily. Now, this is part of the notes from the meeting of 24 January?‑‑‑Okay.

PN5410

If you go to the first highlighted part you will see that there's a reference to "G" and that's a reference to Grahame McCulloch. This is part of the meeting on 31 January 2017?‑‑‑Yes, okay.

PN5411

You will see that there's � I will just take you to the first highlighted part, reference to "G" that's Mr McCulloch?‑‑‑Yes.

PN5412

It says:

PN5413

There is a common claim, don't expect a common outcome. Factoring in circumstances of every university by common consent. Your CFO has said somewhere between 2 to 2.2 million for each percentage.

PN5414

Is that a reference to the CFO having said, "Look, for each percentage of a wages claim there's going to be a $2m to $2.2m amount"?‑‑‑I believe that's what he said, yes.

PN5415

Then it says, this is Mr McCulloch goes on:

PN5416

Our 15 per cent claim would equal 30 million increase.

PN5417

You see that?‑‑‑Yes.

PN5418

You understood that to be obviously 15 times 2 or 2.2 million, thereabouts?‑‑‑It's a simple way of doing the costing.

PN5419

A simple way of doing it, yes. It says:

PN5420

No national benchmarking. We have done our own costings using certain assumptions and testing against actual position against each university. I'm not saying your numbers are wrong, we request underlying assumptions.

PN5421

You see that?‑‑‑Yes.

PN5422

You recall that Mr McCulloch was asking for was your underlying assumptions. Do you recall that?‑‑‑Yes, we did some costings for them from memory which we presented in the meeting.

PN5423

Now he's asking for the underlying assumptions at this meeting, isn't he?‑‑‑He did ask, yes, but it wasn't asked prior to the meeting.

PN5424

Then DM, who is that a reference to?‑‑‑That's Darren McKee.

PN5425

And he says:

PN5426

Don't understand. Are you saying you're applying science to something that has no science.

PN5427

You see that?‑‑‑Yes.

PN5428

Then what I want to take you to is the other part that I've highlighted where Mr McCulloch says:

PN5429

I repeat, we are sending an unambiguous signal. We understand connection between dollar and labour costs.

PN5430

You see that?‑‑‑Yes.

PN5431

And you understood that to be reference to Mr McCulloch saying they basically understand the direct correlation between the 2 million and 2.2 million for each percentage, they understood that?‑‑‑Yes, I believe they're referring to, you know, the percentage increase and how that impacts labour costs.

PN5432

Then it goes on:

PN5433

It's unfair of you to say to us - - -

PN5434

And then he says:

PN5435

We should have told you that we wanted that or other in the costing. I'm not criticising.

PN5436

You see that?‑‑‑Yes.

PN5437

So although Mr McCulloch is saying they need it he's not saying you ought not have brought it down and he's not making any criticism?‑‑‑Yes, I understand that, yes.

PN5438

Then he says:

PN5439

Look, assumptions aren't disclosed. We would like to see those assumptions.

PN5440

Then you say:

PN5441

We will provide those assumptions.

PN5442

?‑‑‑Yes.

PN5443

And that's your recollection, that you said that the university was going to provide those assumptions?‑‑‑At that point in that meeting, yes, that's what was said.

PN5444

Then over the page Mr McCulloch says:

PN5445

We are in a position to indicate we are going to modify our wage plan substantially.

PN5446

You see that?‑‑‑Yes.

PN5447

Then:

PN5448

Independent of super claim there would need to be modification for Murdoch University's circumstances to refer to increases at ECU and Curtin.

PN5449

Do you see that?‑‑‑Yes, I do see that.

PN5450

You agree that the union made a plan that it was going to modify its wages claim substantially?‑‑‑They did say that in the meeting repeatedly, yes.

PN5451

But you didn't record that fact at paragraph 15 of your statement, did you?‑‑‑No, I didn't mention that, no.

PN5452

In your first statement, and I don't need to take you to it unless you can't recall, but you describe Murdoch's position in bargaining as being firm?‑‑‑Yes, I recall saying that.

PN5453

You recall that I showed you the document that was dated 24 January 2017 where the union had recorded the claims being made by the university on the whole and then its responses?‑‑‑Yes.

PN5454

So I won't take you back to that, but can you tell the Commissioner of any claims that have been made by the union that have been accepted by the university?‑‑‑Which meeting, because there was - - -

PN5455

No, as at today's date?‑‑‑As at today's date?

PN5456

Yes. Could you just tell the Commissioner what claims the union have made that the university has accepted?‑‑‑I believe I've dealt with that in my reply. I think I said there was the domestic violence leave.

PN5457

Yes?‑‑‑And Indigenous employment target.

PN5458

And then no other claims?‑‑‑No, not that I'm aware of.

PN5459

You recall that one of the documents I took you to, or really the last document I took you to in the bundle of written documents, the documents that were being exchanged in relation to bargaining and is dated 31 May?‑‑‑Yes.

PN5460

In which the university had set out its annexure?‑‑‑Yes, I recall.

PN5461

Would you agree with me that the parties have after 31 May still been seeking to try to arrange meetings to continue the bargaining, particularly with you?‑‑‑There's been some arrangement. There's been obviously some emails around meetings, yes.

PN5462

Can I just provide you with a copy of those for a moment. I am not going to take you through all of these, but if you could just � I presented them as a bundle to you, but I will tell you that some of them are separate documents. In relation to that bundle you see that the first page has got a page number 1?‑‑‑Yes, I see that.

PN5463

Then that goes to page 7, so it's an email chain?‑‑‑Yes.

PN5464

What that records are emails exchanged between Mr Cousner and yourself in the period 17 May to 29 May trying to arrange another meeting. You see that?‑‑‑I'm just looking through. They're not in date order, but it appears that's correct.

PN5465

Mr Wood says there's one 16 � yes, he's quite correct, 16 May to 29 May?‑‑‑Yes.

PN5466

So turn that email chain over and you will see there's another page 1?‑‑‑Yes.

PN5467

And that's a two page email chain, again just between yourself and Mr Cousner trying to set up another time?‑‑‑Yes.

PN5468

Then just the last document in the bundle which is an email from Mr Cousner to yourself, copy to some others, of 5 July 2017?‑‑‑Yes.

PN5469

Is that really the last in the email chain or email correspondence between you and any representative of the union, that is 5 July 2017?‑‑‑Yes. We are needing to respond to that email.

PN5470

Is your expectation that you are going to try to make another time to meet with the union and continue with the bargaining?‑‑‑We've drafted a response and I believe this morning it was settled so I need to send it across, but we'd be asking some more � in our original correspondence we'd asked for them to provide some written questions and they didn't address that in this email that got sent to us. We wanted an answer, but if they could do that then - - -

PN5471

So you want some answers to some questions before you go to the bargaining, because from your point of view that might make it more productive?‑‑‑Not answer - sorry, I should clarify.

PN5472

Any questions?‑‑‑Any questions I had in relation to our position so we could prepare for the meeting.

PN5473

I'll just tender that bundle of emails, Commissioner.

PN5474

THE COMMISSIONER: Yes, the bundle of emails that range from May through to July 2017 between Mr Alex Cousner and Mr Scasserra we'll mark as exhibit R56.

EXHIBIT #R56 BUNDLE OF EMAILS BETWEEN MAY AND JULY 2017 BETWEEN MR ALEX COUSNER AND MR SCASSERRA

PN5475

MR ATTIWILL: Now could you please go to volume 4, if you don't have that already, and just to Commission book 2022, paragraph 61. So just your first statement at paragraph 61.

PN5476

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

PN5477

MR ATTIWILL: Commission book 2022, Commissioner, in volume 4.

PN5478

And Mr Scasserra, do you see that there's a heading "Fixed Term Employment" on paragraph 61?‑‑‑Yes I see that. Yes.

PN5479

So now I just want to ask you some questions about fixed term employment. So at paragraph 62 - and now I want to ask you some questions about categories of fixed term employment?‑‑‑Okay.

PN5480

You say at paragraph 62:

PN5481

In my experience it's uncommon for an enterprise agreement to include pages of clauses dealing with the circumstances in which an employee can be engaged on a fixed term contract. The clauses in the agreement are therefore unusual and substantially more prescriptive than I'm used to seeing in enterprise agreements.

PN5482

And for example you know that through your experience, and this was when you were at the utility who I understand that I can name now, at Western Power?‑‑‑Yes.

PN5483

You understand that the new form of the agreement which you negotiated for Western Power actually just provided for "Fixed term employees may be engaged". It had no prescriptive - - -?‑‑‑I don't think it was as simple as that.

PN5484

It wasn't?‑‑‑No.

PN5485

Okay, I might have to - - -?‑‑‑It may have had a few more words than that but it didn't have categories. I don't recall the Western Power Agreement having multiple categories.

PN5486

No. Yes, it didn't have categories?‑‑‑Sorry, to clarify.

PN5487

And so is it right that your criticism here at paragraph 62 in relation to this present enterprise agreement is that it has got lots of different categories?‑‑‑It does have lots of different categories, yes.

PN5488

Now in this first statement when you deal with categories in relation to fixed term employment you made no mention of the awards that might apply to Murdoch employees if the agreement was terminated and upon the expiry of the undertaking, do you?‑‑‑I don't recall making any statements on that, no.

PN5489

No, and did you know when you made the first statement that there are in fact less categories for fixed term employment in the award; did you know that?‑‑‑I am aware of that, yes.

PN5490

And at the time you made this statement you were aware of that?‑‑‑I believe so, yes.

PN5491

Could you just go to please Commission book 2314 which is your second statement at paragraph 55 and here - without taking you right back through the chronology - but here you're dealing with and responding to what Mr McCulloch had had to say in his statement?‑‑‑I'll just get to it, please.

PN5492

Sure. So I'm on Commission book 2314 at paragraph 55?‑‑‑Okay.

PN5493

And this is you responding to Mr McCulloch's statement?‑‑‑Yes.

PN5494

And you say:

PN5495

I acknowledge that under the modern awards the number of categories of fixed term employees is less than the number of categories provided for in the agreement, however my main concern with the fixed term provisions in the agreement, as I've stated in my first witness statement and above, is managing the number of additional categories and the right of conversion -

PN5496

And I'll come back to the right of conversion in a moment?‑‑‑Yes.

PN5497

So here now you're setting out that because the Murdoch agreement has more categories than the award, are you saying here that the award would be preferable?‑‑‑When - obviously from the time of doing my first statement to the reply, I've had more experience at Murdoch and I was getting feedback from HR advisers in relation to the management of those clauses.

PN5498

Yes?‑‑‑And one of the feedback that I got from them was in relation to being able to manage the - their number of categories. I think I make that point in my reply statement.

PN5499

But is the feedback that they - you know that the award has the categories from the enterprise agreement?‑‑‑Yes, I'm aware of that.

PN5500

And then it has additional ones?‑‑‑The agreement does have additional ones, yes.

PN5501

Yes.

PN5502

THE COMMISSIONER: I think you said that the wrong way around, Mr Attiwill.

PN5503

MR ATTIWILL: Sorry. Thank you.

PN5504

THE COMMISSIONER: I might be wrong but it might be better just to rephrase it so that we're quite clear.

PN5505

MR ATTIWILL: Yes. Yes I should. Yes.

PN5506

You're aware - - -?‑‑‑Yes.

PN5507

- - - that the enterprise agreement has the same categories of fixed term employment as the award, but the agreement also has additional ones?‑‑‑Yes, that's correct. That's my understanding.

PN5508

Yes, and no one within People and Culture have told you that they'd actually like less categories, have they?‑‑‑They'd like less to manage. So you could - if we were doing another agreement for example, there's 11 - from memory there's 11 categories in the agreement. You could have the award categories and possibly just one other, for example.

PN5509

Yes?‑‑‑To deal with some of those other issues that are in the 11.

PN5510

Yes?‑‑‑To simplify it.

PN5511

But no one has told you within People and Culture that if they had a choice between the agreement and the award they'd rather have the award categories?‑‑‑No, no one has addressed that to me.

PN5512

And when you say you've had feedback, who has that been from?‑‑‑So all the HR advisers that I've been working with, yes.

PN5513

Yes. Now I might take you to this a bit later on but - - -?‑‑‑Yes.

PN5514

And my maths might be a tiny bit out but I think I've counted 16 times in both your statements where you say that you've been told something by People and Culture and then never named the person?‑‑‑Okay.

PN5515

And you'd agree with me that you do that multiple times through your statements?‑‑‑Yes, I've general - I've obviously generalised and said People and Culture.

PN5516

Yes?‑‑‑Yes.

PN5517

And why do you not name the people who gave you this information in your statements?‑‑‑Because I deal with multiple people so it could be more than one that's given me feedback.

PN5518

Now in relation to conversion, and I'm sorry but there is a bit of to‑ing and fro‑ing between both your statements because you deal with these issues in both of them?‑‑‑Sure.

PN5519

But just remaining in your second statement for a moment, if you could go to paragraph 51B and this is at Commission book 2312. I think you introduce paragraph 51 as saying:

PN5520

Since I prepared my first statement I've had more experience with the fixed term clause in the agreement and its difficulties.

PN5521

?‑‑‑Yes.

PN5522

And then we've dealt with 51A in relation to the categories. In relation to the problem that you identify in paragraph 51B I just want to take you to it. You say:

PN5523

Occasionally a fixed term employee may initially be employed for a particular reason justifying employment under one category. However at the end of the agreement the employee may need to be re-engaged for a different reason. However the change in reason is not necessarily communicated to People and Culture.

PN5524

And then you describe:

PN5525

The result being that the employee is offered another fixed term contract under the same category.

PN5526

Do you see that?‑‑‑Yes.

PN5527

You're not suggesting that the breakdown in communication has anything to do with the agreement, are you?‑‑‑I think it's the complexity of the agreement. That's how I view it, that's causing it.

PN5528

But here you've referred at the top of Commission book 2313 as the issue being that:

PN5529

The change in reason is not necessarily communicated to People and Culture.

PN5530

Do you see that?‑‑‑Yes I do see that. Yes.

PN5531

And what you're pointing to there is a breakdown in communication. You agree with that?‑‑‑Well, if they're not communicating, yes, I would agree with what you're saying. Yes.

PN5532

Yes, and a breakdown in the communication has nothing to do with the agreement, does it?‑‑‑Not specifically, no.

PN5533

Now at paragraph 51D on Commission book 2313 you say:

PN5534

In relation to conversion, there is a requirement that the person must at some stage have been merit selected.

PN5535

?‑‑‑Yes.

PN5536

But you agree with me, don't you, that Murdoch:

PN5537

may convert any fixed term employee at any time regardless of years of service or whether the employee has been merit selected.

PN5538

It has got that power?‑‑‑It would do, yes.

PN5539

Yes. Now at paragraph 51E on Commission book 2313 you say this:

PN5540

Due to Murdoch's poor financial position the automatic conversion of fixed term employees to permanent employment undermines the original rationale for engaging an employee on a fixed term basis in the first place.

PN5541

And then you say "i.e." but I won't read on?‑‑‑Yes.

PN5542

If I could just take you to the enterprise agreement for a moment and what I'd like you to do is to go to - - -?‑‑‑I'll need a copy.

PN5543

Sorry, volume 1. Sorry, if you could go to volume 1 and I was just getting the page reference. And at Commission book 1, so the first page, you will see there is the agreement?--Yes.

PN5544

What I'd like you to do is to go to Commission book 21 and there you will see at clause 16.5: "Limitation on use of fixed term employment." I will actually just take you back a step so that you have got the reference. At Commission book page 20, you will see 16.4: "Fixed term contracts"?‑‑‑Yes.

PN5545

Then 16.5: "Limitation on use of fixed term employment." See that?‑‑‑Yes.

PN5546

I am just drawing those to your attention as being the ones that concern fixed term employment for academic staff?‑‑‑Yes.

PN5547

Just dealing with them at the moment, could you take the Commissioner to anywhere in those clauses or anywhere else in the agreement where, as you say, you say there is a right to automatic conversion for fixed term employees?‑‑‑It's conversion criteria L, so your 23.

PN5548

I put it to you that that's not automatic because you have got (i) to (iii) describing particular matters, but then you have got (iv) that permits the supervisor to put forward any other matters for consideration?‑‑‑Yes.

PN5549

You are not suggesting, are you, to the Commissioner, that if you just meet the criteria in (i) to (iii) that you can get automatic conversion, are you?‑‑‑Only on the wording, I understand what you're saying, I would agree. But we have had a case that went to the Commission where a Commissioner looked at that issue and said, my understanding, I'd have to refer back to that case and I think it's attached to my statements and I deal with that issue in my reply statement that you can't just use that category (iv) as a way of avoiding the conversion. And I'm paraphrasing. I don't know what the exact words are in that decision.

PN5550

I will come to that case?‑‑‑And the other issue that we have is that the supervisor generally just supports the position.

PN5551

Just so that I understand it correctly, in your statement, you refer to the automatic conversion of fixed term employees and do you agree with me that the agreement does not provide for automatic conversion of fixed term employees?‑‑‑There's a criteria that needs to be met.

PN5552

But it's not automatic, is it?‑‑‑If you meet that criteria, I believe it is.

PN5553

But what about (iv)?‑‑‑I've addressed that point.

PN5554

Mr Cullingford, do you know Mr Cullingford?‑‑‑Yes, I know Mr Cullingford.

PN5555

You know him to be the Acting Director of Marketing Communications?‑‑‑Yes.

PN5556

He gave evidence of a case in which fixed term employees applied for conversion during a change management process and their applications were not successful as it was highly likely that the substantive roles were going to be made redundant. He gave that evidence to the Commission?‑‑‑Okay.

PN5557

That demonstrates that it's not automatic, doesn't it?‑‑‑I'm not familiar with those cases.

PN5558

Under the conversion clause, and I'm only asking your understanding of it at the moment because you make statements about what your understanding of it is, who is the decision maker?‑‑‑What do you mean by that?

PN5559

Who makes the decision on the conversion?‑‑‑It'd be - the agreement doesn't set out who makes the decision.

PN5560

It's the university, isn't it?‑‑‑Yes.

PN5561

It's not the supervisor?‑‑‑Well, the super has some say.

PN5562

Yes, but that supervisor doesn't make the decision?‑‑‑No, not (indistinct).

PN5563

At paragraph 50 of your second statement, so Commission book 2312, you refer to the case of Mr H?‑‑‑Yes.

PN5564

You say that he applied for conversion but this was refused by the university on the basis that his position was not considered to be ongoing; correct?‑‑‑Yes.

PN5565

You then refer to the fact that it was subject of a decision of the Commission?‑‑‑Well, I don't believe we were - I don't believe the Commissioner made the call that we had to convert. They said: "Go back and apply the criteria."

PN5566

That's right, and so the Commissioner ordered that Murdoch had to apply the criteria; correct?‑‑‑Yes, yes.

PN5567

But what you do say, though - - -

PN5568

MR WOOD: I don't think H is deidentified anymore.

PN5569

MR ATTIWILL: Pardon?

PN5570

MR WOOD: I don't think H is deidentified.

PN5571

MR ATTIWILL: I know, I was just (indistinct).

PN5572

MR WOOD: Okay.

PN5573

MR ATTIWILL: In your statement at paragraph 50, just third line from the bottom, you say:

PN5574

Commissioner Bissett ordered that Murdoch apply the conversion criteria and as a result Mr H was converted from fixed term to continuing employment.

PN5575

?‑‑‑Yes.

PN5576

Were you involved in the case of Mr H in relation to his conversion?‑‑‑No, I wasn't at Murdoch at that time.

PN5577

Who was?‑‑‑I don't recall who was.

PN5578

You don't know why he was converted?‑‑‑I don't know the reasoning. Obviously, I am making the assumption they took on board what the Commissioner's (indistinct) was and made the decision.

PN5579

You read the decision?‑‑‑I have read the decision.

PN5580

In whole?‑‑‑In parts. I don't recall reading it back to front.

PN5581

But you recall that the Commissioner concluded that - and this is what concluded:

PN5582

Having considered the provisions of the agreement the terms of Mr Hayes' contract and the contract extensions, I am satisfied that Mr Hayes has the ability to make an application for conversion.

PN5583

?‑‑‑Yes.

PN5584

That was the extent of it, wasn't it?‑‑‑I'd have to go back and have a look, but, yes, that sounds about right.

PN5585

Prior to making this statement that he was then converted as a result, did you think of making enquiries of the person who made the decision so you could tell the Commission why he was converted?‑‑‑No, I didn't think of that, no.

PN5586

I just wanted to ask you some questions in relation to - you refer to the issue of redundancy payments being made to people who are in ongoing employment but as a result of being converted from fixed term employment. Could you just go to paragraph 64, please, of your - I think it's in your first statement at Commission book 2023 and here you refer to conversations with persons in People and Culture team?‑‑‑Sorry, what was the number of the page again?

PN5587

Yes, sorry, its Commission book 2023. It's in volume 4?‑‑‑Yes, I'm on the page. What clause number, sorry?

PN5588

Paragraph 64. You say:

PN5589

I am aware from my conversations with People and Culture team and my own experience that the conversion of fixed term employment to permanent can be problematic for Murdoch.

PN5590

Without going through the whole paragraph, three lines from the bottom of that paragraph, you say:

PN5591

If the employees engaged on fixed term contracts in these circumstances have been converted to permanent, Murdoch is required to pay them a generous redundancy entitlement under the agreement if their position is no longer required.

PN5592

?‑‑‑Yes.

PN5593

You're aware, aren't you, that that's not the only option to the university? If it no longer requires them in that role, it has got the ability - professional staff can be transferred under clause 64.3?‑‑‑Yes, I'm aware of that, yes.

PN5594

And redeployed under clause 64.4?‑‑‑They could be redeployed, yes.

PN5595

And academics, similarly, depending on what election they make during the transition period, can be redeployed under clause 22.5?‑‑‑I'd have to look at the clause, but it sounds correct.

PN5596

I wanted to ask you some questions about severance payments and remaining in this part of your statement you see that if you turn the page to Commission book 2024, paragraph 70, you say: "From 2014 to 2016, Murdoch paid" - I think it's "paid made" - "paid severance payments to 42 fixed term employees. The total value of the severance payments made was $443,418"?‑‑‑Yes.

PN5597

In relation to that, can you tell the Commissioner are you aware whether or not the relevant awards make any provision for the payment of severance payments to fixed term employees?‑‑‑They do, yes.

PN5598

If you could please go to your second statement at paragraph 69, Commission book 2319. It still concerns the severance payment, but here you give an example. So Commission book 2319 at paragraph 69, and you say:

PN5599

I maintain the example I described could well occur under the agreement.

PN5600

Then you say:

PN5601

For example in the Vet School an employee has recently been converted from fixed term to permanent.

PN5602

Then you say:

PN5603

This was supported by the employee's supervisor but not by the provost.

PN5604

Then you say:

PN5605

If in a year's time the role of this employee is no longer required they will be entitled to severance pay under the redundancy provisions of the agreement.

PN5606

Did that example occur before or after you commenced employment at Murdoch at the end of December last year?‑‑‑The conversion example?

PN5607

This example that you are giving, yes?‑‑‑In relation to the conversion part that happened while I was at the university.

PN5608

And who was involved in that?‑‑‑I was involved in that. I had a little bit of say in what had occurred in that matter and I was advising � one of the HR advisers came to me around the issue. Obviously the business was seeking some advice in relation to the interpretation of the agreement.

PN5609

Yes?‑‑‑And the person had met the criteria in the agreement and the supervisor supported the conversion and the conversion had to occur.

PN5610

When you say the conversion had to occur is that because you say the supervisor supported it?‑‑‑Yes, and it met the other criteria in the agreement.

PN5611

How do you know that the provost did not support it?‑‑‑Because the adviser had advised me that the provost was not supporting the conversion.

PN5612

Why?‑‑‑Because of the � I didn't ask the specific question, but what I have heard whilst being at Murdoch is they've been concerned about the financials of the business and converting employees from fixed term to permanent is a concern for them.

PN5613

As you are giving evidence now is it correct that you do not know why the provost did not support this particular conversion?‑‑‑Not the specific, no. I didn't hear it directly from the provost.

PN5614

Pardon?‑‑‑I didn't hear it specifically from the provost.

PN5615

But as you are giving evidence now you do not know the provost reason for not supporting this particular application, do you?‑‑‑On that particular matter, no, but I've heard � I've heard from the People and Culture team about conversions in general and how the business feels about conversions.

PN5616

I haven't asked you general questions, I have asked you about the provost view on this application?‑‑‑Not in this particular one, no, only what I heard from the HR adviser.

PN5617

I want to ask you some quick questions about the rates of conversion just at paragraph 52 in your second statement, and it's at Commission book 2314?‑‑‑Yes.

PN5618

You see you say:

PN5619

I am informed by People and Culture that in 2016/2017 35 fixed term employees have converted from fixed term to permanent employment because of the requirements in the conversion clause.

PN5620

Then you say:

PN5621

In my opinion this is a substantial number of employees, particularly given Murdoch's financial position and its future outlook.

PN5622

?‑‑‑Yes.

PN5623

So just going back a step in relation to the 35 fixed term employees have you made enquiries about their particular circumstances of conversion?‑‑‑I'd had a list � the HR advisory team provided me a list in relation to who those people were and where they came from.

PN5624

It just had, what, a name and what?‑‑‑They had some other information whether their supervisor supported the application as well, and I had access to some of the documents relating to those conversions, but I didn't view every 35 � I didn't view all the documents relating to the 35.

PN5625

So you don't know the circumstances of each of those person's conversion applications?‑‑‑Not every circumstance, no.

PN5626

And you don't know whether those conversions were in fact wholly supported by their supervisors?‑‑‑I believe that all of them were supported by their supervisors. That was the feedback that was given to me by the advisory team.

PN5627

And you don't know whether those conversions have in fact benefited the university by securing for its staff that are important to its business, you don't know whether that's the case or not?‑‑‑I didn't ask that question.

PN5628

Why not?‑‑‑I didn't think it was relevant. I was chasing to understand how many people where we had converted as a result of the agreement.

PN5629

But here you say, you conclude:

PN5630

In my opinion this is a substantial number of employees, particularly given Murdoch's financial position and its future outlook.

PN5631

?‑‑‑Yes.

PN5632

All I am asking is you don't know whether it was in fact going to benefit the university by security for its staff that were important to its business or not?‑‑‑So I've heard from both the Chief Operating Officer and the provost that they prefer not to convert employees, so I've got that at the back of my mind. So the business, people leading the business are saying they don't want to be forced to have conversions, and so from my point of view if that's the background then if 35 have been converted then that's potentially 35 they could have not done if they wanted to.

PN5633

But you just don't know in relation to these ones?‑‑‑I don't know specifically, but talking with the advisory team the feedback was in relation to the 35 that most of them they wouldn't want converted, if not more.

PN5634

When you refer to the provost are you referring to Professor Taggart?‑‑‑Yes.

PN5635

To your knowledge is he currently in Perth?‑‑‑To my knowledge?

PN5636

Yes?‑‑‑I don't know, I haven't been at Murdoch.

PN5637

When did you last see him or have a discussion with him?‑‑‑It would have been at least two weeks ago.

PN5638

I want to ask you some questions about the grievance procedure, and you deal with this in this second statement at paragraph 80, Commission book 2320, and what you say here is:

PN5639

Murdoch is not seeking the complete deletion of a grievance procedure for employees, rather its position is just simply that such a grievance procedure should be part of the university's general procedures and policies.

PN5640

?‑‑‑Yes.

PN5641

Now, in your first statement, and I won't take you to it at the moment, but in this context you refer to the case of Mr H?‑‑‑I'd have to go back and check.

PN5642

You are familiar with the case of Mr H?‑‑‑I am, yes.

PN5643

In relation to the case of Mr H he raised a grievance?‑‑‑He did during a formal disciplinary matter.

PN5644

And he was terminated for serious misconduct?‑‑‑He was, yes.

PN5645

You also refer to the case, you will be familiar with the case of Mr B?‑‑‑Yes.

PN5646

Mr B raised I think 35 complaints?‑‑‑Yes.

PN5647

It's obvious to you that Mr B would have raised these same issues regardless of whether the process was set out in an agreement or in policy, correct?‑‑‑Yes, if it was in the policy he'd be able to raise it, yes.

PN5648

You identify those two examples, one that results in somebody being terminated for misconduct and another that involved 35 complaints. How did you come to select those two examples to provide to the Commission?‑‑‑Well, they were the examples I was aware of.

PN5649

Were you aware of them because they had been brought to your attention by somebody within People and Culture?‑‑‑I actually had dealt with the unfair dismissal for Mr H, so � helping him preparing the materials for that � for that matter, and in relation to Mr B when I was employee relations manager he continued to raise grievances past 335 he's already raised.

PN5650

Here you are addressing the whole grievance, if I could say system, and whether it should be in an agreement or whether it should be in policy?‑‑‑Yes.

PN5651

Did you make any enquiries of anyone within People and Culture as to how many grievances had been made under the agreement say in the last five years?‑‑‑I did make enquiries. The record keeping in relation to that is not fantastic so they couldn't � they didn't keep records on that so they couldn't articulate by the actual numbers.

PN5652

Did you ask anyone within People and Culture whether any grievances had resulted in a positive outcome; any positive examples that you might be able to tell the Commission about?‑‑‑No, I'm unaware of � none were given to me, so I'm unaware of any positive examples.

PN5653

Professor Kersten gave evidence in the Commission where she provided an example of somebody making an inappropriate comment, and then she dealt with that grievance very efficiently and quickly?‑‑‑Yes.

PN5654

No one told you about that example?‑‑‑No, but it would make sense, there would be some positive examples.

PN5655

Pardon?‑‑‑I'd imagine there'd be some positive examples.

PN5656

Now I want to ask you some questions about performance management and if you could just go to your first statement just at paragraph 95 and this is at Commission book 2027. Just to put it in context, at paragraph 94, you say:

PN5657

The People and Culture team have advised me Murdoch has not terminated the employment of any employee for poor performance in more than three years.

PN5658

Then at paragraph 95, you say:

PN5659

In contrast, from 2014 to 2016, 30 former employees of Murdoch had their employment terminated by mutual agreement prior to the end of their contract.

PN5660

Then you say:

PN5661

The average termination payments that have been paid to these employees have ranged between $975,415 in 2014

PN5662

- and then you give numbers for the subsequent years?‑‑‑Yes.

PN5663

The numbers that you gave here, and I will take you to the second statement where you correct them, but what you're recording here was the average termination payments that have been made to the employees?‑‑‑It's aggregate and I corrected that in my reply statement.

PN5664

I am going to take you to that in a moment as I said, but I'm just asking you some questions about this?‑‑‑Yes.

PN5665

In relation to those 30 former employees that you have said had their employment terminated by mutual agreement, where did you get that number from?‑‑‑It was given to me by Hannah, Hannah Clark, and I understand the information was collated from payroll.

PN5666

Pardon?‑‑‑The information was collated from the payroll team.

PN5667

What other information did Hannah give you to about those 30 former employees, apart from a number?‑‑‑I only had aggregates, so I had like a total number and then the dollar figures for the years.

PN5668

And that's it?‑‑‑That was it when I did my original statement.

PN5669

Is that all the information you had to then state what you say at paragraph 95?‑‑‑Well, I've been - I was involved in some mutual separations, so I'm aware of some since I was there, so I had some experience.

PN5670

How many?‑‑‑Two or three, from memory.

PN5671

Apart from the two or three, you don't know whether any of those other ones, and let's say it's 27 or 28 persons, you don't know whether any of those persons were the subject of any formal performance reviews under the agreement, do you?‑‑‑I don't recall being told that, no.

PN5672

At the time that you made this statement, how did you calculate? Did you calculate the number yourself? And I'm just dealing with the numbers at the top of Commission book 2028. Did you come up with that number yourself of $975,415?‑‑‑No, payroll had calculated and provided Hannah a total.

PN5673

Were you just told that the average payments that had been made to employees ranged between those numbers?‑‑‑Yes.

PN5674

As you have said, you corrected that and that's at your second statement at paragraph 83, and I don't need you to go through it at the moment because I'll give you the numbers, but could I just take you briefly through it and actually before I do that - well, no, I had better take you to it. If you could just go to your second statement at paragraph 83 and here you say that the figures that you provided were incorrect at page Commission book 2321?‑‑‑Yes.

PN5675

You say:

PN5676

They should have been total rather than average figures and should have excluded non-agreement covered staff

PN5677

?‑‑‑Yes.

PN5678

In relation to 2014 then, you got a revised figure being an average from $975,415 to $356,829.28?‑‑‑It's an aggregate, not an average.

PN5679

An aggregate, right?‑‑‑Yes, it's just total.

PN5680

When you made the first statement, were you stunned by the fact that somebody within People and Culture was telling you - giving you the data that showed that the average payment being made was, in fact, almost a million dollars?‑‑‑"Average" is an error. I didn't pick that up when I reviewed my first statement, that's why I've corrected it. So, it's total.

PN5681

Yes, I know, but what I am asking you is when you looked at those figure and come to make that statement, did it occur to you that the average payment that you were setting out in your statement of almost a million dollars was incredible and a massive number?‑‑‑It wasn't an average, so it's a total.

PN5682

No, in your statement you recorded it as an average, your first statement; right?‑‑‑Yes, I understand.

PN5683

So when you came to make that statement and sign it as being accurate, did it occur to you that the figure of $975,000 being an average figure was an incredible figure?‑‑‑I understood it to be a total. I missed - I picked - I missed that when I did my original statement. So, I've always understood it to be a total figure, not an average. It was an error in the wording. I just didn't pick it up and I picked it up when I did my reply.

PN5684

You considered it to be a total figure?‑‑‑Yes.

PN5685

If you could just go to Commission book 2028 at paragraph 96, you're referring to the data that - you're referring, as I understand it, 96 remains uncorrected and you say:

PN5686

This data strongly suggests that Murdoch is opting to use expensive mutual separations to deal with underperformance.

PN5687

?‑‑‑Yes.

PN5688

When you made that statement, that was based on the data, the erroneous data in 95, wasn't it?‑‑‑Based on the data that was provided to me by People and Culture.

PN5689

And based on the new data that you have got, that's no longer your view, is it, that the data strongly suggests that Murdoch is opting to use expensive mutual separations? It's no longer your view?‑‑‑No, it is my view.

PN5690

Could you just go to Commission book 2321 at paragraph 84 and still within the topic of performance management, you mention the case of Ms P and you attach two documents to your statement?‑‑‑Yes.

PN5691

Apart from the two documents that you attach to your statement, do you know anything else about the case of Ms P?‑‑‑I'd been - I'd received a couple of verbal feedback sessions, I suppose, from the advisory team in relation to that case, so I'm across all the detail of it.

PN5692

From Hannah?‑‑‑No, it was from Kate. I forget her surname. She was a contractor working at Murdoch and also the employer relations manager, Sarah Hutchings.

PN5693

You otherwise had no involvement in it?‑‑‑When I was the employee relations manager, the matter was on foot so I had some awareness of it, but I wasn't close to all the detail when I was the acting ER manager. So, I knew it was ongoing, for example.

PN5694

I will only ask you a few questions about it, but do you agree with me that the university provided Ms P with generous timeframes in relation to this matter to her performance?‑‑‑I'd have to go back and review the letters.

PN5695

It's set out in the letters, so let me take you to it. If you go to Commission book 2402, there's one of the letters that you attach as DS25. You see that?‑‑‑I'm just going to it.

PN5696

Could I just ask you a separate question, did you read this letter before you made your statement?‑‑‑I did. I did read the letter, yes.

PN5697

If you could go to just Commission book 2406, you see there under the heading, "Show cause", it says:

PN5698

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

PN5699

?‑‑‑Yes.

PN5700

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

PN5701

?‑‑‑Yes.

PN5702

Do you agree with me that the university had provided generous timeframes or you just don't know?‑‑‑Well, I knew the process had been going on for many months, but obviously based on that letter that would suggest that we provided generous timeframes.

PN5703

Were you also told as part of any briefing that the performance improvement process had considered all aspects of Ms P's performance and allowed extenuating circumstances, including ill health and leave on her part?‑‑‑I don't recall getting that brief.

PN5704

Right, and what about did you get any briefing from anyone that the performance improvement processes had also allowed a generous amount of time to ensure that the outcomes and conclusions were fair?‑‑‑I understand we gave her time to improve. Yes, that was my understanding of the general matter.

PN5705

But did anyone tell you that that was to ensure that the outcomes and conclusions were fair?‑‑‑Well, it's part of a good process to give people the opportunity to improve their performance.

PN5706

Now I want to ask you some questions about misconduct and its management. So if you could just go to your first statement please at paragraph 107, and that's at Commission book 2030 and you'll see that you set out some key issues for Murdoch in relation to the misconduct clause?‑‑‑Yes.

PN5707

And firstly in paragraph 107A you say:

PN5708

There are different definitions of serious misconduct for professional staff and academics.

PN5709

?‑‑‑Yes.

PN5710

Are you aware that one of the differences between the definition of serious misconduct for academic and professional staff is that there are words included in the definition in relation to serious misconduct for professional staff, that it also concerns - they are the words:

PN5711

...or to the reputation or financial interests of the university.

PN5712

?‑‑‑And that's omitted in the academics?

PN5713

Yes?‑‑‑Yes, I am aware of that. Yes.

PN5714

You're aware of that, and do you know the reason for that? Is there any reason for that to your knowledge?‑‑‑I think feedback from the union was that in relation to - it's because of the academic freedom.

PN5715

Right. Yes and are you familiar with the code of conduct that's part of this case that has been annexed to Mr McKee's statement that sets out the principles of academic freedom and so forth?‑‑‑I haven't reviewed it.

PN5716

Pardon?‑‑‑Sorry, I haven't reviewed Darren's statement.

PN5717

What it says - and I'll just take you to this very briefly - is that at clause 2.2 of that code of conduct, which is exhibit DM4 to his statement, it says that:

PN5718

Staff in exercising their right to freedom of expression have a responsibility to give consideration to the reputation of the university and its orderly and safe functioning.

PN5719

?‑‑‑I'm not familiar with the document so I can't comment.

PN5720

Okay, and are you aware though that the university wished to change the definition of serious misconduct so that it's consistent with the definition for professional staff, and that is that it also includes the words:

PN5721

...or to the reputation or financial interests of the university.

PN5722

?‑‑‑I think that's correct. I'd have to go back and review our draft that we put up. There's a number of positions been put, so there's a lot of documents to refer to.

PN5723

Sure, but just from the university's point of view as I understand it it's no part of the university's position, is it, that it wants to be able to prosecute an academic for serious misconduct in circumstances in which they appropriately exercise their academic freedom in accordance with the code of conduct - - -?‑‑‑That's not what the university's seeking to do.

PN5724

- - - but that it might harm the reputation of the university. It wouldn't want to prosecute an employee, an academic staff member, for that would it?‑‑‑No, I don't believe it is wanting to set out to do that.

PN5725

In relation to paragraph 107B of your statement you say, you describe it as a lengthy process that must be engaged in?‑‑‑Yes.

PN5726

And I just wanted to ask you a quick question. At paragraph 116 where you deal with this you say:

PN5727

I do not consider it is best practice or usual for an enterprise agreement to contain a prescribed process for managing misconduct. Employers need to have the ability to be flexible around the process they use to manage misconduct. Each case should stand on its own merits.

PN5728

Do you see that?‑‑‑Yes.

PN5729

Now you'd agree with me, wouldn't you, that the existing clause enables minor misconduct to be dealt with in a speedy and flexible manner?‑‑‑Minor misconduct?

PN5730

Yes?‑‑‑What do you mean by that?

PN5731

Let me just take you to it then. If you just go to volume 1 that contains the enterprise agreement and the word "minor" is mine so I'm just going to take you to the clause itself. But you see 20.4A:

PN5732

If there is any allegation of misconduct it should where practicable and reasonable be resolved by the academic supervisor through guidance, counselling, conciliation or other appropriate action that may include staff development.

PN5733

Do you see that?‑‑‑Yes.

PN5734

So what I'm putting to you is that where you might have an allegation that's, you know, like an inappropriate comment that somebody says that hasn't caused much harm, that the agreement itself allows for a speedy and flexible way to deal with it in paragraph 20.4A?‑‑‑For a non - yes, non‑serious misconduct.

PN5735

Yes, that's right?‑‑‑Yes. Yes, I would agree.

PN5736

And you agree that the clause, that is the whole of clause 20, does prescribe time limits for each stage of the process?‑‑‑It does set out - - -

PN5737

It has got timing in it?‑‑‑It does set out timing, yes.

PN5738

Yes, okay. Now at paragraph 107C of your first statement, and you might not need to turn back to it if you take it from me that it just - you talk about the lack of flexibility to adjust the process?‑‑‑Yes.

PN5739

That it's inflexible?‑‑‑Yes.

PN5740

And in your second statement which I will just quickly take you to, at paragraph 88 at Commission book 2322 you give a hypothetical example. So you say - and this is responding to what Mr Braithwaite said in his statement. You say:

PN5741

Under the clauses of the agreement which Mr Bradshaw refers to, any remotely serious misconduct would need to be investigated, not dealt with informally.

PN5742

And you say:

PN5743

Even in the case of theft where you have CCTV footage showing the employee stealing you must advise the employee of concerns then wait 10 days before investigating.

PN5744

?‑‑‑Sorry, what - I - sorry to interrupt but what page are we at? I'm still trying to catch up.

PN5745

Sorry, I should have - I'm at page Commission book 2322?‑‑‑Sorry about that.

PN5746

No, no, it's me. At paragraph 88?‑‑‑Okay.

PN5747

And maybe if you could just read paragraph 88 to yourself?‑‑‑Yes. Yes?

PN5748

So you refer to the university being able to advise the employee of the concerns and then it has to wait 10 days?‑‑‑Before the investigation commences.

PN5749

Yes?‑‑‑Yes.

PN5750

And is that the extent of what you say the university can do? Is that all the powers that it could exercise in this example?‑‑‑I think there could be others. I'd have to go back and read the clause, but it's the worst case scenario.

PN5751

Right, well if an employee is shown to be stealing - but obviously just watching a video and seeing somebody do something is one thing, but assuming that the university is of the view that that's showing somebody stealing at that moment, they can be suspended without pay immediately can't they?‑‑‑I understand they can be, yes.

PN5752

Yes, and when you refer to an investigation you're speaking of the formal investigation?‑‑‑Yes, typically I - if I had evidence like that as an ER manager, and I've been an ER manager in more than one organisation, I would want to start the investigation straight away.

PN5753

But what I'm putting to you is that there is nothing in the agreement that stops the university from making its own enquiries about what just happened, and it probably should?‑‑‑Yes.

PN5754

But what the agreement is prescribing is then a separate investigation that would be then commissioned into those acts if it was serious misconduct?‑‑‑Yes, but it wouldn't be able to advise the employee until 10 days had passed that we'd formally commenced investigating.

PN5755

Pardon, I just didn't catch the start of your answer?‑‑‑Sorry. We wouldn't be able to advise the employee immediately in that scenario that you put to me that we formally commenced an investigation, we have to wait the ten days and then write to the employee and advise them of such.

PN5756

What I am putting to you is that there's nothing stopping the university from suspending the person with full pay, starting to make its own enquiries and advising the employee accordingly. You disagree with that?‑‑‑I would have to go back and read the clause just quickly.

PN5757

Commissioner, I am about to go to a new topic. I don't have a lot more. I am not going to be hours, it's going to be less than an hour.

PN5758

MR WOOD: I have got a bit in re-examination though.

PN5759

THE COMMISSIONER: Sorry, Mr Wood, you were contributing.

PN5760

MR WOOD: I have got a little bit in re-examination.

PN5761

THE COMMISSIONER: We should adjourn for lunch. All right, we will adjourn now and resume at 2 pm. Thank you.

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<DANIEL SCASSERRA, RECALLED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [2.04 PM]

CROSS-EXAMINATION BY MR ATTIWILL, CONTINUING牋牋 [2.04 PM]

PN5762

MR WOOD: Commissioner, my learned friend doesn't mind if I get up to tell you two things and I hope you don't mind either. We have provided to your chambers by email a draft typed order which we hope conforms with the order that you made before lunch and in relation to which our learned friends did not consent but had no opposition. Secondly, before lunch, our learned friends sought and obtained an order directed to the applicant to provide other memoranda of the type referred to or similar to the documents tendered as R54 and R55. I am instructed there are no such documents.

PN5763

MR ATTIWILL: Thank you, Commissioner. Now, Mr Scasserra, could I just ask you - - -

PN5764

THE COMMISSIONER: Sorry, have you seen the emailed draft of the order and, if so, do you have any comments?

PN5765

MR ATTIWILL: We have no further comment in relation to that order.

PN5766

THE COMMISSIONER: All right, that's all. Thank you.

PN5767

MR ATTIWILL: Thank you, Commissioner.

PN5768

Mr Scasserra, could you just please go to your second statement, please, at paragraph 90, at Commission book 2323. That's in volume 4?‑‑‑Yes.

PN5769

You see, what you say there is:

PN5770

The misconduct investigation review panel adds another level of regulation. Ultimately, if an employee is dismissed and wishes to challenge that dismissal, he or she may do so by lodging an unfair dismissal application in the Fair Work Commission.

PN5771

?‑‑‑yes.

PN5772

This was expanding on your point and I don't wish you go back to it. In your first statement at paragraph 107D in which you said one of the key issues for Murdoch was the ability for employees to appeal disciplinary decisions?‑‑‑Yes.

PN5773

In your first statement, you referred to the case of a Dr Z and you exhibited the decision of the review panel in relation to Dr Z?‑‑‑It's in my statement, yes.

PN5774

Is this a correct summary of what happened in relation to Dr Z? The independent investigator found Dr Z guilty of serious misconduct?‑‑‑Yes.

PN5775

The review panel found that Dr Z was not guilty of serious misconduct?‑‑‑I believe so, yes.

PN5776

The review panel was constituted by three people?‑‑‑There was three people, yes.

PN5777

That included the vice-chancellor's nominee?‑‑‑Yes.

PN5778

The decision was unanimous?‑‑‑I'd have to go back and check.

PN5779

It was unanimous, so the questions I am about to ask you, you could assume that. Now, in your statements, you don't express any concern about the correctness of the decision of the review panel, do you?‑‑‑No.

PN5780

I want to put it to you that assuming that the decision of the review panel was correct, the decision of the review panel righted what otherwise would have been an injustice, didn't it?‑‑‑If it ended up at the Fair Work Commission and it was the same decision then the answer would be "Yes".

PN5781

Where it stopped there, the review panel, they identified that the decision of the investigator was incorrect?‑‑‑That's what the review panel did find, yes.

PN5782

What I have asked you to is, assuming that the decision of the review panel was correct, assuming it was correct, it righted what would have otherwise been an injustice. Do you agree with that?‑‑‑Assuming it was correct, then, yes.

PN5783

I put it to you that it's appropriate for such an internal appeal process to be in an enterprise agreement because it means that at an early opportunity such an injustice can be corrected. Do you agree with that?‑‑‑I agree with the statement.

PN5784

I want to ask you some questions about redundancy. Do you agree that under the agreement once an employee is informed that their position will become redundant they enter into a transition period of eight weeks?‑‑‑That would be - that would be for academics.

PN5785

Yes, academic, I should have - - -?‑‑‑There's two provisions.

PN5786

That's right. So in relation to academic employees, they enter into a transition period?‑‑‑Yes.

PN5787

At paragraph 93 of your second statement you deal with this issue and if you could just go to that, please. It's at Commission book 2323?‑‑‑Yes.

PN5788

You say:

PN5789

In my view, the eight-week transition period for academic staff is too long. Murdoch is required to retain the employee during this period on full page and accruing further leave entitlements. This comes at the end of what has already been a very long consultation process. In practice, academic employees whose roles are redundant prefer to finish up and be paid out.

PN5790

?‑‑‑That's correct, yes.

PN5791

Where you say "in practice", what's the source of that information that you have got in that last line of paragraph 93?‑‑‑I had asked the People and Culture team about the cases of any redundancies in relation to academics and two cases were brought to my attention and on both of those occasions, they elected to leave and be paid out.

PN5792

And how many - - -?‑‑‑There's not been - there's not been many academic redundancies in the last few years, as I understand.

PN5793

Where they elected to leave, the academics can do precisely that, can't they, because they accept a voluntary redundancy at any time during the transition period; agree with that?‑‑‑Yes, they can elect to leave, yes.

PN5794

In your first statement at paragraph 123, and I don't need you to necessarily go to it at the moment, but you state the number of redundancies in the period 2014 to 2016?‑‑‑Yes, I recall.

PN5795

What you say at paragraph 123 is you make an observation about that number and you say that it's low?‑‑‑Yes.

PN5796

And then you say:

PN5797

Given Murdoch has experienced a budget deficit in the previous two years.

PN5798

I just want to ask you some questions about that. On what basis do you say it's low?‑‑‑I suppose I work with other businesses outside of Murdoch University and I've seen what's been happening in the environment, I suppose in the economic environment and business community. So I base it on some experience of what some of my other clients have been experiencing when they've been in financial trouble, they've had a little bit higher redundancies from what the university had, but I also understand the way the deficits are at the university, they're not hitting their 5 million � there's a 5 million deficit. I suppose if the deficit was high I could see potentially higher numbers. I would predict higher numbers I suspect.

PN5799

Are you able to provide to the Commission any data involving these other companies that you have just referred to?‑‑‑I don't have any data on my if that's what you're asking, no.

PN5800

I want to ask you some questions now about change management and consultation regarding change, and obviously you are aware the clauses that we have got in it in the present case concern the term "developed a proposal for organisational change", you're familiar with that term?‑‑‑I believe that's in the agreement.

PN5801

At paragraph 142 of your first statement, and that is at Commission book 2035, you state:

PN5802

Since 2012 there have been at least 14 change management processes undertaken at Murdoch.

PN5803

You see that?‑‑‑Yes, I'm just going to it, sorry. What number paragraph, sorry?

PN5804

Paragraph 142 on page Commission book 2035?‑‑‑Yes, I've seen that, yes.

PN5805

And you refer to at least 14 change management processes?‑‑‑Yes.

PN5806

Can we take it from that obviously that on at least 14 occasions the university has developed a proposal for organisational change?‑‑‑Yes.

PN5807

I put it to you that this demonstrates that the university knows what the term means as it's acted under this clause on at least 14 times; you agree with that?‑‑‑Yes, they'd understand there'd be an obligation to consult.

PN5808

In your second statement at paragraph 45 you deal with this issue, and if I could just take you there. It's Commission book 2311, and to the second sentence in particular at paragraph 45. Have you got that?‑‑‑Yes.

PN5809

You say:

PN5810

Potentially if management is considering a possible organisational change then it must commence consultation under the agreement.

PN5811

What you speak of there is if it's considering a possible organisational change. You see that, and I want to put it to you that that is incorrect and that it only applies where it has developed a proposal for organisation change. You agree with that?‑‑‑Yes, I'd agree with that, that's the language out of the agreement.

PN5812

Now, just briefly if you could go to Commission book 3047 which is in volume 5. I just wanted to ask you, you recall that Mr McCulloch has given evidence about what he describes as annexure GM31. Do you remember that table of different - - -?‑‑‑Organisations.

PN5813

- - - organisations where they have got a two-step process or a one step process and the timing?‑‑‑I do.

PN5814

And Mr McCulloch makes some observations about it, then you make some observations about it?‑‑‑Sorry, what was the reference page number?

PN5815

It was Commission book 3047, and I am trying to get a reference to it as well. Almost there, it's at tab 214?‑‑‑Yes, I've got it.

PN5816

You will see heading "Comparison and managing change redundancy process outcomes"?‑‑‑Yes.

PN5817

You agree with me that in relation to where it describes a one step process you see the greatest length of time concerns 12 months for the University of Melbourne. That's three-quarters of the way down Commission book 3047?‑‑‑Yes, I do see that.

PN5818

And that was a one step process, wasn't it?‑‑‑Yes.

PN5819

Are you able to tell the Commissioner in your experience that in relation to change management what are the factors that might go to how long it's going to take?‑‑‑Depending on the size and complexity of the change the organisation is looking to introduce. If they're doing a complete organisation restructure for example that's going to be a lot more complex, it affects a lot of different people versus - - -

PN5820

So in an organisation � sorry, you go?‑‑‑Versus like potential, like a small area that's getting changed versus organisation wide. That may be a factor that would play into the length of time for example.

PN5821

So one thing might be that if you have got a small business unit of ten people and it's being restructured to create different roles and so forth?‑‑‑I'd expect that to happen relatively quickly because it's easy to everyone and quick decision making.

PN5822

What about � just taking that � let's say that you had a unit within a much larger organisation of say 20 people and that was being sort of if you like reformulated and changed a bit, what sort of time could you expect that sort of change management process to take. So you've got a discrete unit within a much larger organisation of say 20 people?‑‑‑It comes down to the changes, because if there was redundancies then it may take � it could take � it depends on what they're doing I suppose. It's hard to qualify the time, but in my experience if you're restructuring even an area I've had as quick as a week possibly to do a change or it can go into a month or two months.

PN5823

What about six months?‑‑‑I don't think that's reasonable, no.

PN5824

I will come back to that in a moment. If you go, please, just to your second statement, so going back into volume 4. I want to ask you some questions about a clinical psychologist, a Dr Jenny Wong?‑‑‑Yes.

PN5825

To give it some context if you go to paragraph 42 at Commission book 2311?‑‑‑Yes.

PN5826

You say:

PN5827

I have recently sought the views of a clinical psychologist, Dr Jenny Wong, in relation to what is best practice in terms of timeframes to change taking into account the mental health and wellbeing of staff.

PN5828

Then you set out what you say the advice says, and I will take you to the advice in a moment directly, but I want to just ask you some questions about the retainer of Dr Jenny Wong. Did you seek these views on behalf of the university?‑‑‑Yes, I did.

PN5829

Was Dr Jenny Wong paid for her views?‑‑‑She hasn't been paid but she will be paid.

PN5830

She will be paid. Yes. Am I correct that Dr Jenny Wong is the only expert to be retained by the university in relation to this issue of change management to your knowledge?‑‑‑Well, based on my dealings the only one. I don't know - - -

PN5831

Yes, based on your knowledge - - -?‑‑‑I don't know what the university's � I don't know whether they've done other things or - - -

PN5832

But you don't know of anyone else?‑‑‑I don't know of anyone else, no.

PN5833

Did you speak to Dr Wong?‑‑‑I did have a telephone conversation with her, yes.

PN5834

Did you give her any brief in writing?‑‑‑I did, yes.

PN5835

You did. I call for that. Is that something that you would be able to produce quickly?‑‑‑I could possibly. I have to see if I can get access to my system.

PN5836

Let's just deal with it for a moment. Was her brief to advise on best practice?‑‑‑I can't remember the exact words in the letter or the instructions that went, but I had a telephone conversation and I'd explained some of the challenges that the university had, including what was in the agreement, and Jenny advised me that she's currently advising a large multinational on change at the moment and has been doing so for 12 months.

PN5837

Can I just ask you, with her retainer was it just in relation to this proceeding or looking at what the university should be doing with its change management clause more generally and working towards the bargaining?‑‑‑I actually didn't discuss with Jenny the costs, it wasn't something that was discussed. I was - I dealt with other colleagues of hers in relation to costs.

PN5838

No, no, sorry, I didn't mean costs. I just mean was the retainer of Dr Wong?‑‑‑Yes.

PN5839

In relation to get a statement from her for the purposes of this proceeding?‑‑‑Yes.

PN5840

Or was it to obtain her expert views about best practice for the purposes of looking at what sort of change management process the university should have?‑‑‑It was for these proceedings.

PN5841

Now I want to take you please just to what Dr Wong says in her letter?‑‑‑Yes.

PN5842

So if you could just please go to the letter. It is at Commission book 2390 and what she says here - and I'm not going to take you through the whole letter but she says:

PN5843

Dear Daniel, Thank you for the opportunity to respond to the request for psychological services to Murdoch University regarding best practice timeframes for introducing workplace change.

PN5844

And then I want to draw your attention to what she believes she's addressing, which is about three-quarters of the way down the page where it says "To assist Murdoch University". Do you see that?‑‑‑Yes.

PN5845

She says:

PN5846

To assist Murdoch University to manage future change process in a best practice manner that minimises any negative impacts on employees' mental health, please consider my comments as to the recommended timeframe for introducing the following examples of changes utilising the change impact assessment.

PN5847

?‑‑‑Yes.

PN5848

And then she refers to in the next paragraph a template:

PN5849

This template provides a structured format?‑‑‑Yes.

PN5850

And then she addresses the matters in subparagraphs (a) to (c). Do you see that?‑‑‑Yes.

PN5851

And your understanding when you read this letter was where she has got a subparagraph (a) "Low impact", the matters that then appear beneath that deal with low impact?‑‑‑Yes.

PN5852

And similarly subparagraph (b) "Medium impact", the matters that are set out there concern obviously the medium impact?‑‑‑Yes.

PN5853

And then similarly (c) "High impact", the matters that she then sets out under that indented subparagraph concern high impact?‑‑‑Yes.

PN5854

Now just going back to (a), she sets out low impact. It just says that:

PN5855

A change that affects a small number of staff or has minor impact on staff, for example a minor change to duties or reporting lines.

PN5856

And then she doesn't really give a timeframe there, does she?‑‑‑No, she doesn't.

PN5857

But she does in relation to medium impact and she says a few other things along the way that I want to ask you about. "Medium impact" she says:

PN5858

A change that affects a larger number of employees or has a more significant impact on employees for example a change that might involve some redundancies.

PN5859

And she goes on:

PN5860

Medium complexity involving less common and important change.

PN5861

She says:

PN5862

This level of change may impact a significant number of customers, whole department or multiple teams.

PN5863

And then she says this:

PN5864

Typically there will be a minimum of two meetings of staff and the provision of a change proposal and a change decision document.

PN5865

?‑‑‑Yes.

PN5866

So she's clearly recommending there a two stage process, isn't she?‑‑‑You could read it that way, yes.

PN5867

Well, that's what it says, doesn't it? You have a change proposal and then a change decision?‑‑‑She's not qualifying that they need to happen separately.

PN5868

You're not seriously suggesting that what she's setting out there is to have a change proposal decision document all in one?‑‑‑I'll just clarify with her - - -

PN5869

Well just in your experience, you can't have a proposal and a decision all in one document, could you?‑‑‑No, no, I understand what you're saying.

PN5870

No, and so I put it to you that what this clearly shows in relation to high impact the university's own expert is recommending a two stage process. Do you see that?‑‑‑Yes, I can see what you see.

PN5871

And this is best practice, isn't it? This is best practice, do you agree with that?‑‑‑That's the opinion of the doctor, yes.

PN5872

Put forward by you?‑‑‑Yes.

PN5873

With no criticism at all, is it?‑‑‑Yes.

PN5874

Yes, engaged by the university for a fee to comment on best practice, and that's what she says. Do you agree with that?‑‑‑Well, that's what she said in her letter, yes.

PN5875

Then she goes on:

PN5876

The minimum amount of time for a small change process may be around four weeks, whilst a large change process may take up to three months.

PN5877

?‑‑‑Yes.

PN5878

She, as you've agreed with me in previous answer to a question, is dealing with that timeframe in relation to only to medium impacts, isn't she?‑‑‑She is, yes.

PN5879

Yes. Now could you just go back then to the paragraph that I took you to earlier in your second statement, paragraph 42 where you summarise her advice, and what I want to ask you is what your summary in paragraph 42(b) - you say:

PN5880

This advice was that a large change would typically be concluded within three months.

PN5881

Do you see that?‑‑‑Yes.

PN5882

And I want to ask you, from what I've just taken you to you can see that you should have confined that to being a medium impact, shouldn't you?‑‑‑Yes, I should have. Yes, on a reading of the letter again.

PN5883

And so she has got a medium impact up to three months?‑‑‑Yes.

PN5884

And then you see that she goes on and deals with high impact, doesn't she?‑‑‑Yes she does.

PN5885

And she doesn't give any time period for that, does she?‑‑‑No, there's no maximum period she gives.

PN5886

Yes. Now you recall that I earlier was asking you questions about Western Power but at that point I was calling it the utility, and your involvement in 2008 in getting other agreements and so forth in a more you said modern style?‑‑‑Yes I do recall.

PN5887

Do you remember those questions?‑‑‑Yes.

PN5888

Yes, and at paragraph 138 of your first statement, if I could go to that please. That's at paragraph - at Commission book 2034. You say:

PN5889

In my experience it is unusual for a consultation process to take more than two weeks, particularly where the change being sought is not substantial.

PN5890

Do you see that?‑‑‑Yes.

PN5891

I want to put it to you that obviously Ms Wong has got a different experience, doesn't she, particularly in relation to a medium impact it could be up to three months?‑‑‑Medium impact in her definition.

PN5892

Yes, you agree with that?‑‑‑Medium impact, yes.

PN5893

Now did you know that Mr Cullingford worked at Western Power?‑‑‑Yes. I did know that, yes.

PN5894

And did you know that he was actually involved in a number of - or two change management processes?‑‑‑I'm probably only aware of one because I left Western Power in 2014, May.

PN5895

Yes?‑‑‑And he was still there after I left.

PN5896

Was that change management process that you were aware of the one concerning the communications team?‑‑‑I don't recall. No, I don't recall whether it was. It was a large organisational change, the one I was involved in.

PN5897

Right, was the large organisational one, would this be an accurate description of it:

PN5898

It was a large organisational change to aligning the business to meet the regulatory requirements of the business in the future and dealing with the way in which there was a change in the way people use electricity.

PN5899

Was it sort of that nature, big regulatory change or some other change?‑‑‑I'm aware - I know a little bit of Western Power even after I left.

PN5900

Yes?‑‑‑There was - they've had multiple restructures, so.

PN5901

Yes?‑‑‑Yes.

PN5902

I'll just deal with what Mr Cullingford had to say about the changes and then we can always come back to - - -?‑‑‑Yes, I'm trying to recall.

PN5903

- - - to that one?‑‑‑I'm trying to recall the one I was involved in.

PN5904

That's all right?‑‑‑But I don't remember those words. I know the restructure as OMAR. That's what it was referred to. Organisational - I can't remember even the acronym, to be honest. It was known at Western Power as OMAR.

PN5905

Right, could I just provide you with copies of these two documents?‑‑‑Yes.

PN5906

They're the Western Power ones for 2013?‑‑‑Thank you.

PN5907

Now what I've provided you with is two extracts from each of the enterprise agreements in relation to Western Power?‑‑‑Yes.

PN5908

Do you see that?‑‑‑Yes.

PN5909

And dealing with the one that's dated 20 September 2013 and really just getting to the chase, you'll see that the second‑last page is headed "Schedule 1 Consultation"?‑‑‑Yes.

PN5910

And that talks about a definite decision?‑‑‑Yes.

PN5911

And, similarly, in relation to the other enterprise bargaining agreement dated 21 August 2013 and going to schedule 1, that also talks about a definite decision?‑‑‑It does, yes.

PN5912

I tender those extracts, Commissioner.

PN5913

THE COMMISSIONER: Yes, the documents identified as decisions of this Commission, 2013 FWCA 7263 dated 20 September 2013, we will mark as exhibit R57.

EXHIBIT #R57 DECISION OF THE COMMISSION, 2013 FWCA 7263 DATED 20/09/2013

PN5914

MR ATTIWILL: Thank you, Commissioner.

PN5915

THE COMMISSIONER: And the second decision of this Commission, 2013 FWCA 5556, dated 21 August 2013, we will mark as exhibit R58.

EXHIBIT #R58 DECISION OF THE COMMISSION, 2013 FWCA 5556 DATED 21/08/2013

PN5916

MR ATTIWILL: The reason why I am asking you questions about what Mr Cullingford had to say is because you are in a position where you are familiar with Western Power; correct?‑‑‑I'm familiar, yes.

PN5917

Also, too, you have got some experience, obviously, as an industrial relations consultant?‑‑‑Yes, yes.

PN5918

Mr Cullingford gave evidence that he was involved in two change management processes at Western Power?‑‑‑Yes.

PN5919

The first one he was involved in he described as a restructure of the communications team at the utility that was going to affect about 20 people. From that information that I have just provided to you with as a description and from what you know of the utility, are you able to estimate how long you expect that change management process would have taken?‑‑‑I don't have the details - the full details of what had occurred, so there would be a number of factors that may be in play which I am unaware of. Twenty people, Western Power, it depends how they managed it. I don't recall that particular matter, but you want me to answer in relation to the agreement itself?

PN5920

Yes, you have got the agreement. You can see it's a definite change. It's a one-step process. You know it's a restructure of the communications team at the Western Power who you are familiar with and it's going to affect 20 people. So, using your experience both as an employee at Western Power and also too as an industrial consultant, how long do you think that process might have taken?‑‑‑I'd say four to six weeks.

PN5921

Mr Cullingford gave evidence that it took six months?‑‑‑Okay.

PN5922

I want to ask you some questions about dispute settlement and if you could just go back to your - you might have it there, your first statement at paragraph 150. This is Commission book 2036 and have you got that?‑‑‑Yes.

PN5923

At paragraph 150, you refer to the relevant clauses containing a dispute resolution and then you identify what you describe as the main problem for Murdoch. You said: "The main problem for Murdoch with the clauses is that the NTEU may bring a dispute against Murdoch in its own right." See that?‑‑‑Yes.

PN5924

You don't raise any other concern or criticism with the dispute procedure apart from the fact that the NTEU may bring a dispute. Do you agree with that?‑‑‑Yes, that looks correct, yes.

PN5925

You refer only to one case, don't you?‑‑‑There was one matter I raised, yes.

PN5926

Why did you raise that matter from September 2014? How did you come to arrive at that example?‑‑‑It's the example that People and Culture provided me.

PN5927

Did you ask them for any example where the NTEU had raised a dispute with something that had happened at the university and it had a good outcome?‑‑‑Actually, my request was to provide any examples of any disputes.

PN5928

The dispute that you refer to here, how long did that go for?‑‑‑I don't think it was a lengthy one, but I don't recall.

PN5929

How long?‑‑‑I don't recall.

PN5930

Two months? Six months? A shorter period?‑‑‑No, it would be shorter. I think it was short.

PN5931

Ten days?‑‑‑Possibly, it could have been. I don't recall the exact timeframe.

PN5932

I am just going to ask you a few quick questions about it because Ms Shepherdson of the union will give some evidence about it. Could you please just go to Commission book 3296 and this is in volume 6. You will see that that is a statement of Donna Shepherdson?‑‑‑Sorry, what was the reference?

PN5933

Yes, Commission book 3296 behind tab 249?‑‑‑Sorry, yes, I'm here now.

PN5934

You see she identifies who she is and if you turn the page, she records what she says happened?‑‑‑Yes.

PN5935

At paragraph 5, she says that she lodged a dispute?‑‑‑Yes.

PN5936

Then you will see that about 13 days later, and this is at paragraph 8, on 11 September 2014, she met with Mr Cusack to discuss the dispute?‑‑‑Yes.

PN5937

And that she conveyed the concerns of the members?‑‑‑Yes, I see that.

PN5938

"Mr Cusack advised me that the university considered it was entitled to fill the position because it was outside the scope of the agreement and that the new position sat above the restructure and filling the role did not commit the university to the proposed restructure and roles below it"?‑‑‑Yes.

PN5939

That's accurate, isn't it?‑‑‑Well, based on what's in there, yes.

PN5940

Do you know whether that's accurate or not?‑‑‑I can't recall the exact dates. I believe it to be accurate, I should clarify.

PN5941

Then you see that on 19 September: "Mr Cusack wrote to me" - or wrote to Ms Shepherdson in response to the dispute and that ended it, didn't it?‑‑‑Yes, it did end it. It was a short dispute.

PN5942

I put it to you that the benefit of having the union raise the dispute was that it was raised in a cogent and clear manner?‑‑‑It was clear, yes.

PN5943

A meeting was quickly arranged between the union and the representative from the university?‑‑‑Yes.

PN5944

It was dealt with quickly?‑‑‑The dispute was dealt with, yes.

PN5945

I put it to you that that is a reason for the inclusion of such a provision in an enterprise bargaining agreement because there is a benefit in having the union bring a cogent and clear dispute on behalf of a member and for that to be raised and dealt with in an expeditious manner. Do you agree with that?‑‑‑I don't agree with that statement, no.

PN5946

I want to ask you some questions about academic workloads and if you could just go to your first statement at paragraph 154 to 156 and that is at page Commission book 2037?‑‑‑Yes.

PN5947

You set out these matters in relation to academic workloads in your first statement. So you refer to, in paragraph 154, to clause 50.7 and then you go on. Were these matters that you looked at yourself and what I'm asking is in relation to your summary of the clauses, did you look at the clause in the agreement and then type this matter yourself?‑‑‑What do you mean by that?

PN5948

Did you prepare this yourself, these paragraphs?‑‑‑I didn't type the statement. I had talked to the statement and it was typed.

PN5949

I don't want you to say what was discussed, but could I just ask you in relation just to the matter that you said at paragraph 156, where you say: "Clause 50.10 requires that staff working on a 40 per cent research load or greater have a 10-week non-teaching block." You recall, don't you, that it also says "or weekly blocks"?‑‑‑I'll have to go back to the clause.

PN5950

I might just take you to it quickly just out of fairness. Could you just go to Commission book in volume 1 at paragraph 71 - sorry, page 71?‑‑‑Yes.

PN5951

What you have set out in your statement is that it looks like there's got to be a 10-week non-teaching block. Agree with that?‑‑‑Yes, I have set that out, yes.

PN5952

If you go to Commission book 71, clause 50.10, you will see that it's got to be in a single block or blocks of weeks. Do you see that?‑‑‑Yes, I see that.

PN5953

And so you would agree with me that obviously your statement only sets out part of it, it would have to be in a non-teaching block in a single block, a block of weeks?‑‑‑Yes.

PN5954

Do you agree with that?‑‑‑I do, yes.

PN5955

Now, at paragraph 157 of your first statement, so it's at Commission book 2037, you say:

PN5956

Based on what I have been told by the managers I have spoken to Murdoch - - -

PN5957

Who are they?‑‑‑The provost is one of the main people that I spoke to. He's obviously the head of the academics in the university so the most senior person that looks after the academic workforce.

PN5958

Yes?‑‑‑And I had conversations with Ms Hannah Clark. Obviously she's been working on the bargaining, and I also spoke to Michelle Narustrang as well as Darren McKee.

PN5959

Darren McKee has given evidence � do you know is Ms Hannah Clark in Perth at present?‑‑‑She's in Perth, yes.

PN5960

And Ms Narustrang is obviously in Perth and has been attending these hearings?‑‑‑Yes.

PN5961

In relation to what you were told by the provost you actually provided some detail in relation to that, and that's in your second statement at paragraph 95, so if I could just take you to that, and that is at Commission book 2323, and this is going to the issue of workloads, and you will recall the 75 per cent teaching cap?‑‑‑What paragraph, sorry?

PN5962

Paragraph 95, this is Commission book 2323?‑‑‑Yes, I'm on there.

PN5963

You say:

PN5964

Based on my discussions with the university's provost Professor Taggart I understand that historically there was an emphasis upon research at the university. However in more recent times while research is still considered an important component of Murdoch's activities teaching has increased in importance.

PN5965

Is that what he's told you?‑‑‑Yes.

PN5966

Mr McKee has given evidence in this proceeding that the university is a research focused university. You don't know, do you, whether it's research focused or teaching focused from your own experience, do you?‑‑‑No, I've heard a little bit about the university and how � how that worked in overtime. My understanding was they had a bend towards research, but that's slowly moving.

PN5967

But you haven't experienced this yourself, this is just from what people have told you?‑‑‑Yes, that's correct.

PN5968

The person that told you the matters that you have set out here is Professor Taggart, isn't it?‑‑‑That's correct.

PN5969

And he is not giving evidence, is he?‑‑‑I don't believe he is, no.

PN5970

Could I just ask you some questions about salary maintenance. You deal with salary maintenance. You're aware, aren't you, that in fact the university and the union have agreed in relation to salary maintenance of a cap of 12 months; are you aware of that?‑‑‑That's part of the positions that have been put between the parties, yes.

PN5971

And that's one matter in which there has been some agreement, isn't there?‑‑‑The whole redundancy clause is not agreed, but that's one matter that's been agreed.

PN5972

Yes, one matter, and I am only - - -?‑‑‑Yes, so it's one matter, but the whole clause is not agreed in relation to redundancy.

PN5973

No, I am just dealing with the discrete issue of salary maintenance?‑‑‑Yes.

PN5974

I just want to ask you some questions in relation to superannuation, and if you could please go to paragraph 172 of your first statement, and you say � this is at Commission book 2039 � have you got that?‑‑‑I've got it, yes.

PN5975

During the bargaining Murdoch's position has been that it wants employees to have choice and not be subject to UniSuper.

PN5976

?‑‑‑Yes.

PN5977

Do you agree with me that clauses 26 and 73 which deal with superannuation don't require employees or the university to choose UniSuper as the fund into which contributions are paid; do you agree with that?‑‑‑It's the default fund if an employee doesn't choose.

PN5978

No, I am asking you a question which is this, and I will take you to the clauses, but do you agree with me that neither clauses 26 nor 73 nor any other clause of the agreement requires either employees or the university to choose UniSuper as the fund into which contributions are paid; do you agree with that?‑‑‑I'd have to go back and read the clause.

PN5979

Could you please go to clause 26 first - - -?‑‑‑I'm a little bit confused by the question, that's all.

PN5980

Yes, sure. We will do it in the context of the actual agreement. So if you could just go to volume 1, please, and just go to clause 26, and you will see clause 26 is at Commission book 45 to 46, and once you have had an opportunity to read clause 26 I just wanted to ask you a question?‑‑‑There's two clauses, I'll need to read the other one as well.

PN5981

Pardon?‑‑‑I think there's two clauses.

PN5982

Yes. Maybe if we just stay with clause 26 just for convenience at the moment and then we will go to the other clause, but just in relation to clause 26 do you agree with me that clause 26 does not require employees or the university to choose UniSuper as the fund into which contributions are paid?‑‑‑It doesn't say it directly. It does refer to UniSuper in 26.2, it talks about the flexibility quota.

PN5983

And other relevant arrangements with external superannuation providers, do you agree with that?‑‑‑Yes.

PN5984

So do you agree with my question though, that the clause does not require either employees or the university to choose UniSuper as the fund into which contributions are paid?‑‑‑Based on that reading I'd probably say yes.

PN5985

Had you read this clause prior to making your statement?‑‑‑I did read this clause, yes.

PN5986

Could you please go to clause 73, and that is on page Commission book 106 to 107, and for convenience I am going to ask you the same question?‑‑‑It looks like the clause is the same so the answer would be the same.

PN5987

Are you aware that the union in these proceedings will be calling a number of witnesses who are employed by the university who have superannuation with other superannuation companies, not UniSuper?‑‑‑Yes, I understand there's employees at Murdoch that have other super.

PN5988

And that might include Australian Super, self-managed super, Hostplus, of that nature?‑‑‑I don't know the exact funds, but they're common funds.

PN5989

I want to ask you about annual leave and a correction that you made to your statement. So if you could go to that, it's at Commission book 2039?‑‑‑Yes, I'm looking at it, 177.

PN5990

You agree that here all you are dealing with is excess annual leave, you agree with that; it's what the heading says?‑‑‑Yes.

PN5991

You weren't intending to deal with any other leave, were you?‑‑‑That's correct, yes.

PN5992

What you say here is, you talk about some restrictions in the agreement being in paragraph 176, you say:

PN5993

These restrictions make it difficult to get large leave balances under control.

PN5994

Then in the original version of your statement before it was amended as I understand it, it said, or it said:

PN5995

Murdoch currently has a 36 million annual leave liability.

PN5996

?‑‑‑Yes.

PN5997

Then you say:

PN5998

I understand that this is a particular issue for academic employees in certain schools.

PN5999

?‑‑‑Yes.

PN6000

So when you identified it being a particular issue what did you mean by that, what is the particular issue?‑‑‑Higher leave liability.

PN6001

Pardon?‑‑‑Higher leave liability.

PN6002

Is it a leave liability that only relates to the normal leave liability that the university would in the normal course of events accrue, or only a leave liability that is sort of exceptional, if you like, over the 300 hours?‑‑‑I don't know the detail. I know at some schools the leave liabilities were high because they weren't getting cleared. That's how I understand it to be an issue.

PN6003

And here in the original version of your statement you refer to it being a 36 million annual leave liability. Now that has been changed to a 36 million total leave liability?‑‑‑Yes. Yes.

PN6004

Now do you know what the annual leave liability is?‑‑‑I believe it's around 14 million but I'm not a hundred per cent. That's just from memory of the conversation I've had.

PN6005

And could I just ask you, when you made this correction, given the fact that you're dealing with annual leave liability why didn't you make the correction to the 36 million to 14 million?‑‑‑I didn't think of it that way. I probably should have.

PN6006

Yes, because addressing annual leave liability, I put it to you it's of no assistance then just to be including all leave liabilities, is it? One can't determine what the annual leave liability was from your statement at all?‑‑‑I was trying to correct what the figure was.

PN6007

Yes, but the easiest way to have done that was just to set out the sum of 14 million, wasn't it?‑‑‑Possibly, yes, in hindsight.

PN6008

And did you turn your mind to doing that?‑‑‑I didn't think of it until you've brought it up.

PN6009

Before you made the correction did you know that it was a $14 million annual leave liability?‑‑‑Yes.

PN6010

Yes, okay?‑‑‑I did.

PN6011

And because the 36 million, that includes what sort of other leave?‑‑‑It would have long service leave and those types of leave.

PN6012

Yes, okay, and with the $14 million figure that's a total annual leave liability isn't it?‑‑‑I believe it is, yes.

PN6013

And so it includes annual leave that's being accrued in the normal course?‑‑‑It's total leave.

PN6014

Yes?‑‑‑Annual leave.

PN6015

It's not a figure that represents the total amount of annual leave that's being accrued by for example employees over 300 hours?‑‑‑No. Typically organisations report on total leave.

PN6016

Do you know what the liability of the annual leave is in excess of the 300 hours?‑‑‑No I don't.

PN6017

Now I might just hand to you a copy of this document and this is a copy of an email from the vice‑chancellor dated 10 May 2017. You see on the bottom of page 1, the penultimate paragraph:

PN6018

The current leave liability for the university is 14.3 million.

PN6019

That's the figure that you've referred me to?‑‑‑Yes.

PN6020

Then:

PN6021

Which is a substantial amount in our current financial situation.

PN6022

And then what she says is:

PN6023

The liability carries 1.8 million in excess leave.

PN6024

And then she explains that:

PN6025

This is leave that staff carry above two years' leave accrual as stipulated in our enterprise agreement.

PN6026

Do you see that?‑‑‑Yes I do. Yes.

PN6027

And so you understand that to mean, don't you, that what the vice‑chancellor is saying here is that in excess of what she describes as two years' leave accrual is only the sum of 1.8 million?‑‑‑That's what it suggests, yes.

PN6028

I tender that document, Commissioner.

PN6029

THE COMMISSIONER: Yes, the document which is an email from Murdoch University Announcement, Wednesday 10 May 2017 at 10.18 am subject "Vice‑chancellor's message" we will mark as exhibit R59.

EXHIBIT #R59 EMAIL DATED 10/05/2017 SENT 10.18 AM SUBJECT "VICE CHANCELLOR'S MESSAGE"

PN6030

MR ATTIWILL: Thank you.

PN6031

Now in your first statement just at paragraph 215 you set out details concerning the Federal Court proceedings and you do that to paragraph 221?‑‑‑Yes.

PN6032

Why did you do that?‑‑‑Why did I set it out?

PN6033

Yes?‑‑‑I was asked to put it into evidence.

PN6034

Right, I don't want you to tell me if it was a legal representative - well, I won't even ask you the question because the only way you could answer it is by doing that. So I won't ask you that. But otherwise you yourself, could you see any relevance to it, to your statement at all?

PN6035

MR WOOD: I mean I've let this cross‑examination go on and on, cross‑examining this witness about what he understands about what a vice‑chancellor thinks, what he thinks Ms Wong thinks - - -

PN6036

MR WOOD: Hang on. If you've got no objections - - -

PN6037

MR WOOD: What he thinks an agreement means, and now we've got to this. He's going to rule on his own relevance. I mean it's just ridiculous, really. We've sat here for too long.

PN6038

MR ATTIWILL: I don't understand the objection.

PN6039

MR WOOD: It's a relevance objection. The question you asked is not relevant.

PN6040

MR ATTIWILL: In my submission it is because Mr Scasserra has come before the court, he has given - the whole statement concerns what the agreement means and he has done it as an advocate so I've just asked him questions about it. In relation to this particular matter we have just the setting out of what has happened in the Federal Court proceedings and I want to know from Mr Scasserra, given the fact that he is the author of his statement, just what the relevance of it was. He says certain things - - -

PN6041

THE COMMISSIONER: Yes, I'll allow it. Carry on.

PN6042

THE WITNESS: Can you ask the question again just so I'm clear?

PN6043

MR ATTIWILL: Sure. I was asking you about the paragraphs 215 to 221 in which you just set out matters about the Federal Court proceedings, and you said you were asked to do it and I'm not going to ask you who asked you to do it. But can you see, because it's your statement, any relevance of it to any of the evidence that you've given in this proceeding?‑‑‑Well, the matters relating to the Federal Court were in reference to what was occurring in bargaining and particularly around communications. So there are some relevance - it obviously factored into bargaining in terms of the communications. That's all.

PN6044

Well how is that relevant?‑‑‑It's relevant to the bargaining process and I've commented about the bargaining.

PN6045

But how is it relevant to the bargaining process? You don't explain it in your statement, so can you tell the Commissioner how you consider it to be relevant to that evidence?‑‑‑Well, the Federal Court matter was around communications that were being put out by the union.

PN6046

Yes?‑‑‑And obviously the company had issue with that.

PN6047

Yes?‑‑‑And I've talked about in my statement about bargaining and how the union's been behaving, and I suppose it shows some relevance in relation to that. But that's all I can say. I don't have anything else to say in relation to that matter.

PN6048

You don't know anything about the merits of the university's claim in that proceeding at all, do you?‑‑‑Only high level. I don't know the detail, no.

PN6049

THE COMMISSIONER: Mr Attiwill - - -

PN6050

MR ATTIWILL: Okay that's enough, I won't - - -

PN6051

THE COMMISSIONER: I don't think he's the Federal Court Judge, so probably not.

PN6052

MR ATTIWILL: Yes, I know. Okay.

PN6053

Now just finally, you did a first statement then you obviously read - is it right that you read these statements of the union; you read the statement of Mr Cousner?‑‑‑Yes.

PN6054

Mr McCulloch?‑‑‑Yes.

PN6055

Mr Braithwaite?‑‑‑Yes.

PN6056

Mr McKernan?‑‑‑Yes.

PN6057

Ms Shepherdson?‑‑‑Yes.

PN6058

Ms Washington-King?‑‑‑Yes.

PN6059

And Ms Pollin?‑‑‑Yes, that sounds right.

PN6060

Did you read any other statements?‑‑‑I don't recall reading any others. No.

PN6061

And am I right that where you disagreed with them you set that out in your second statement?‑‑‑Yes.

PN6062

No further questions, Commissioner.

PN6063

THE COMMISSIONER: Any re‑examination, Mr Wood?

PN6064

THE WITNESS: Commissioner, can I please have a quick break?

PN6065

THE COMMISSIONER: Yes?‑‑‑Is that okay?

PN6066

Let's just adjourn for five minutes please.

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SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.00 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [3.06 PM]

PN6067

THE COMMISSIONER: Carry on, Mr Wood.

PN6068

MR WOOD: Thank you, Commissioner.

<DANIEL SCASSERRA, RECALLED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [3.06 PM]

RE-EXAMINATION BY MR WOOD牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.06 PM]

PN6069

MR WOOD: Mr Scasserra, you were just asked before the break about salary maintenance and the extent to which that was an agreed item in the bargaining and you said redundancy is not agreed. What do you mean by that?‑‑‑Well, the total - the total position on redundancy is not agreed between the parties.

PN6070

What do you mean by the total position on redundancy?‑‑‑There was some draft - there's some - we have put - Murdoch has put up a draft position in relation to redundancy and that's not been agreed to by the union. Part of that clause included the 12 months - 12 months - I've lost it, sorry. Just remind me what the matter is again.

PN6071

Salary maintenance?‑‑‑Salary maintenance, 12 months' salary maintenance was in that clause, sorry.

PN6072

Just go slowly. I know you've been in the witness box for almost a day so just take your time. You were asked some questions about a dispute settlement procedure and you were asked whether it was a benefit that the union was able to raise disputes because they could do so - quote - "In a cogent and clear manner"?‑‑‑Yes.

PN6073

And you didn't regard this as a benefit, why not?‑‑‑Well, in relation to that matter that we were discussing, the matter wasn't - that matter that was raised as a dispute didn't actually relate to the agreement, so then that suggests to me the union can and does raise disputes when they want to even if it's not a relevant matter.

PN6074

You were asked some questions about paragraph 96 of your first witness statement which is found at court book 2028. Can you just turn to that for a moment, Mr Scasserra?‑‑‑Yes.

***牋牋牋� DANIEL SCASSERRA牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 RXN MR WOOD

PN6075

Can you have a look at paragraph 95 as well because you were cross-examined on that? Just tell me when you've read 95 and 96?‑‑‑Yes.

PN6076

Do you recall that you were taken to your reply statement where you reduce the amounts referred to in paragraph 95 and refer to them as total or aggregates rather than averages?‑‑‑That's correct, yes.

PN6077

Then you were asked at paragraph 96 whether that changed your view expressed at paragraph 96 which is that the data strongly suggests that Murdoch is opting to use expensive mutual separations to deal with underperformers and you said that remains your view. Why does it remain your view?‑‑‑Because in my statement I address that and I had asked the People and Culture team in relation to turnover statistics and one of the statistics I asked for was to look at employer initiated turnover and in relation to performance management, and this is underperformance, not misconduct, and the answer that I was given in the last three years, and it's in my statement, that Murdoch hasn't terminated anyone in relation to those matters. And yet, conversely, I've seen evidence of mutual separations. So, in my mind, as a practitioner, IR practitioner, that suggested to me that we were opting to use mutual separations and not deal with - is finding it difficult to deal with it through the agreement clause. And in my time at Murdoch, I have been involved in a couple of mutual separations.

PN6078

You were asked about that because you were asked questions about paragraph 95 about the 30 cases?‑‑‑Yes.

PN6079

And you said, not unlike what you've just said, that you have been involved in a couple. Your evidence before lunch was you have been involved in two or three?‑‑‑Yes.

PN6080

The questions were then asked, apart from those two or three, but I would like to ask you about those two or three. What, if anything, can you say about them?‑‑‑Well, one particular - there was one particular case where we had a senior employee paid in excess of $120,000. The manager - the manager had been having a number of informal conversations with that person about their performance and it got to a point where something serious happened in relation to their performance that was really bad and there were - they had to address that matter with that employee and at that point a decision was made to mutually separate.

PN6081

What about the others within that group of two or three?‑‑‑There's a couple of other cases from memory that I've dealt with, more so just advising on how to manage that mutual separation once they've got to that point in the process where they believe they needed to go there. So it was more to reference that I was aware of other cases.

PN6082

Can you go to paragraph 80 of your first witness statement � sorry, paragraph 80 of your second witness statement � no, sorry, paragraph 87 of your first witness statement at 2326. You were asked about Mr H and Mr B - - -?‑‑‑Yes.

PN6083

- - - and to the extent to which you were aware of those examples and you said you were involved in the unfair dismissal of Mr H?‑‑‑In the preparation of that matter to the Fair Work Commission.

PN6084

What was your involvement?‑‑‑Helping prepare for the responses that we had to provide to the Commission.

PN6085

Mr H is Mr Stephen Hayes?‑‑‑That's correct, yes.

PN6086

In relation to Mr B who is Mr B?‑‑‑Mr Bland, Ian Bland.

PN6087

You gave evidence that you had some knowledge of this issue because it continued past 35. What did you mean by that?‑‑‑So Mr Bland comes on the radar very often at the People and Culture office. Obviously I was the employee relations manager for a period of time and obviously being at the university I hear about cases. Where I work at Murdoch it's very � it's right next door to the adviser so you hear the cases quite regularly, and sometimes even when I'm not in the capacity of an ER manager and people ask my opinion on how to deal with matters, so I'm aware that further complaints have come through from that individual.

PN6088

How many past 35 are you aware of?‑‑‑I don't know the exact number, but it would be a reasonable number. They come in days. So when I spoke to the adviser recently, maybe four weeks ago, there's one adviser that looks after the area where Mr B works and she's very � she always talks about the case because it's a difficult case because there's lots of complaints coming in and she says it wouldn't be a day go by that she has to deal with a matter relating to Mr B.

PN6089

You were shown some emails which have been tendered as exhibit R56 � could the witness be provided with R56.

PN6090

THE WITNESS: I've got it here.

PN6091

MR WOOD: You were asked about the extent to which meetings post the last meeting, which I think was the 27th on 28 April 2017 might be agreed. Do you recall those questions?‑‑‑I do recall those questions, yes.

PN6092

You said you were trying to get the union to provide written questions in writing and you said you hadn't received them. Do you recall that?‑‑‑I do recall that, yes.

PN6093

Can you identify any email in the bundle that I have just provided you in relation to that?‑‑‑I'll just have a look. Yes, there's an email sent on Friday from me to Alex Cousner.

PN6094

Friday of which date?‑‑‑Friday 23 June 2017 at 1 pm.

PN6095

Which part of the email are you looking at?‑‑‑It's on page 1 and it's the very, very first email.

PN6096

There are three page 1s of this email, you need to be a bit more precise, Mr Scasserra?‑‑‑I don't know how to describe it.

PN6097

Do your best?‑‑‑I'll just read it for a second. So the subject is "Re negotiation meeting", and then I say:

PN6098

We therefore request that the NTEU provides any questions in writing after which we will take some time to consider the questions and a meeting can be organised, which may or may not be next week.

PN6099

That was sent on 23 June 2017 at 1 pm.

PN6100

Why did you make that request?‑‑‑Because we had written to the union with our position responding to their offer that was presented in the final meeting. We'd been trying to organise a meeting for some time to meet back with them or brought back, and in the end it couldn't happen, so we decided to write to the union with our position, and then in that response we had indicated that if we were to meet again we'd like to understand your questions (indistinct) about new positions, particularly that (indistinct).

PN6101

Has there been any response as far as you know to this email of 23 June 2017 in relation to that request - - -?‑‑‑The questions?

PN6102

- - - to you, provide any questions in writing?‑‑‑They haven't set any questions. They've asked � they've sent another email last week requiring another meeting, a meeting time, and wanting to know when we're available.

PN6103

You were asked some questions about the, I think it was the first meeting that you attended, a meeting that went I think on your evidence some six hours or so on 24 January?‑‑‑Yes.

PN6104

You were cross-examined along the lines that you acknowledged the movement of the union and you thank them for their position in that meeting. Why did you say those two things?‑‑‑You have to understand the context of that meeting was my first meeting in front of the union, I hadn't met the union previously. So I wanted to acknowledge - although I was disappointed with the movement I wanted to acknowledge there was some movement. I mean bargaining had been going on for a long time, so it's purely me trying to get some rapport in the room effectively and behave professionally.

PN6105

When you say you were disappointed with the movement what do you mean by that?‑‑‑Obviously we, or the university had briefed me on what had happened in negotiations to date and my understanding was we had reached an impasse in an earlier meeting, particularly � I think it's 30 November where the parties obviously were very different � had different views in terms of where the negotiations were in terms of their position. So going into that meeting - - -

PN6106

Into that meeting do you mean the 24 January meeting?‑‑‑The 24 January meeting. My understanding was that as a result of a 240 conference with Commissioner Williams where the parties had agreed to do a further two meetings, so going into that meeting I suppose I was expecting to see some change on the items that were really important for the university, and I didn't see that change. What I saw was change around the edges. I did acknowledge � and it was early in the meeting, remember we were there for two days, we had the 24th and the 31st, so I didn't want to come across quite negative at the beginning of that meeting. I was also new to that meeting, I wasn't familiar with the people so I was trying to show some rapport, but ultimately we were disappointed once we heard from the union on that morning.

PN6107

When you say ultimately, ultimately at what point, the meeting of the 24th, the 31st or some other time?‑‑‑I'd say on the 24th particularly where the union ran through their position update in relation to all the issues. I didn't relay that because we decided to take some time to reflect on what was given to us on the 24th. We had a further bargaining meeting on the 31st and that's where we provided more of a view of how we felt that the union was going in relation to the positions and where bargaining was.

PN6108

When you say that union update on the 24th you were asked some questions about that document. It's at 2174 of the court book. Could you turn to that document. It goes to 2175?‑‑‑Yes, I'm at the document.

PN6109

You said in answer to a question from my learned friend, Mr Attiwill, that it was provided, that two-page document, to us during the meeting. Which meeting are you referring to in your answer?‑‑‑That was the 24th.

PN6110

You also said it was emailed to us after the meeting. Can I hand you a document? We will provide a copy to our learned friends and to the Commission. Can you just tell the Commission what that document is?‑‑‑This is an email that's come from the union and it has attachments on 25 January, so it would have come after. It would have come after. This email would have come after the negotiation meeting on the 24th from the union, effectively, and it attached that document that you were referring to previously.

PN6111

I tender the email?‑‑‑Yes.

PN6112

MR ATTIWILL: Commissioner, the only matter I would draw attention to there is that this email is incomplete and the whole document - - -

PN6113

MR WOOD: We will tender the whole document.

PN6114

MR ATTIWILL: It's got a number of attachments, some of which I haven't seen and so if it's to be tendered, the whole document and all of the annexures should be attached.

PN6115

MR WOOD: That is not the right position. I am tendering this to support the evidence given in cross-examination that the document at 2174 to 2175 was, in fact, emailed to us after the meeting on the 24th. That's what I am tendering it for. I don't have to put these other documents in, but if you want me to put them in, we'll put them in.

PN6116

MR ATTIWILL: It's just if a document is to be tendered then, in my submission, it just should be the document, not bits that have been selected, so the whole thing goes in.

PN6117

MR WOOD: We will tender the whole document.

PN6118

THE COMMISSIONER: I think this is one of those occasions when I dig out that bit of the Act that says the rules of evidence don't apply here and I have more than enough paper.

PN6119

MR ATTIWILL: That's true.

PN6120

MR WOOD: Yes.

PN6121

THE COMMISSIONER: If those attachments in due course become relevant, Mr Attiwill, then certainly they will obviously need to be - - -

PN6122

MR ATTIWILL: The only matter - and I wouldn't do it - and it might be something I take up with my learned friend, but, for example, the second attachment is something that directly arises from here: "NTEU questions." That should be before you, Commissioner. Maybe not all of these Excel spread sheets and the annualised hours and the general service term and so forth, but I am concerned for a partial document to be provided and it looks like that that document, in particular, is relevant and it actually has been the subject of both cross-examination and then just re-examination.

PN6123

MR WOOD: We will tender the whole thing.

PN6124

THE COMMISSIONER: Thank you, Mr Wood. I am accepting this email for the limited purposes that Mr Wood sought and that is to demonstrate that page 2174 - 2175 of the Commission's book was provided as an attachment to an email on Wednesday, 25 January at 5 pm, and for nothing beyond that. We will mark the email. It's from Alex Cousner, Wednesday, 25 January 2017, at 5 pm, to Hannah Clark, subject, "NTEU materials", and that is exhibit A12.

EXHIBIT #A12 EMAIL FROM ALEX COUSNER TO HANNAH CLARK DATED 25/01/2017, SUBJECT "NTEU MATERIALS"

PN6125

THE COMMISSIONER: Carry on, Mr Wood.

PN6126

MR WOOD: Thank you, Commissioner. Could the witness be given exhibit R5, please?

PN6127

THE COMMISSIONER: Have you got it there, Mr Scasserra?‑‑‑I think it's the emails that we were referring to previously.

PN6128

MR WOOD: You were asked about this question - - -?‑‑‑Sorry, I don't know which document I'm looking at.

PN6129

I'm sorry?‑‑‑Which document am I looking at? These aren't numbered.

PN6130

You were asked about this document and you said you were handed it at a meeting. Which meeting?‑‑‑It was the meeting when we met on 28 April. It was the last meeting that we had with the union.

PN6131

You have got the minutes of the meeting of 28 April at 2380 of volume 4 of the Commission book?‑‑‑Yes.

PN6132

I just want you to look at two parts. At the bottom of 2380, there is a reference to Mr McCulloch saying, "In the letter note we sent", and then if you turn to 2385, in the middle of the page there is a reference to: "We have a substantive document here"?‑‑‑Yes, I see that.

PN6133

You may not be able to recall, but having me take you to those notes, can you recall whether the document which is exhibit R5 was given to you at the beginning of the meeting at about the time at which the note at the bottom of 2380 would signify or the middle of the meeting?‑‑‑It took some time to get. I could see a document that they was across the table, but it didn't come straight away. Definitely not early in the piece of that meeting.

PN6134

Can you turn to paragraph 53 of your first witness statement at 2021, you were cross-examined on paragraph 53 by reference to the document at 2078 which is the document provided by Murdoch to the union around that date?‑‑‑Yes.

PN6135

You were asked having been asked to look at the document which my learned friend had about 36 clauses and was full of draft clauses whether you could criticise the union on the basis that you had at paragraph 53. Do you remember those questions?‑‑‑I do recall, yes.

PN6136

You said you couldn't criticise the union on that basis by reference to 2078. What did you mean by that?‑‑‑That I said that? Sorry, can you clarify that last bit?

PN6137

I would like to, but there is a limit to what I can say in re-examination, Mr Scasserra?‑‑‑Sorry, I just didn't hear the last bit of your point.

PN6138

You said that you couldn't make the criticism that you made in paragraph 53 on the basis of the document at 2078?‑‑‑Yes, I recall.

PN6139

What did you mean by that?‑‑‑I think I was referring to how Mr Attiwill had put the - or posed the question to me, so I believe he was narrowing, I suppose, originally from what I was trying to say in relation to why I'd be critical of the clause by clause approach.

PN6140

What was that other basis that you were trying to say?‑‑‑I'm not used to dealing with negotiations on a clause by clause basis. As I understood, that's how the parties had been bargaining for some time. So, it wouldn't be my preferred approach if I was commencing negotiations from afresh, for example.

PN6141

Why is that?‑‑‑Because I find it to be inefficient. I think you should talk about concepts and principles and agree on the big ticket items and then move to the drafting of the agreements - typically how I would negotiate an agreement.

PN6142

You were asked about the so called big ticket items, in fact, you called them the larger ticket items in your cross-examination earlier today and you said in response to some questions about whether or not you had done some background work and reviewed all the clauses in the agreement and harmonised the clauses, and you said this was still at an early stage, that there was limited utility in it because quote:

PN6143

The larger ticket items and the particularly important ones for the university hadn't been agreed.

PN6144

Do you recall saying that?‑‑‑I do recall saying that, yes.

PN6145

What do you mean by the larger ticket items and particularly the important ones for the university?‑‑‑Do you want me to define what they are?

PN6146

Yes please?‑‑‑They're in relation to our positions on redundancy, salaries, managing underperformance, managing misconduct, change management, fixed term contracts, academic workloads and to a smaller extent but still important is the position on superannuation and the disputes clause.

PN6147

You were asked some questions yesterday at paragraph 31 of your witness statement at page 2018 about the basis - do you just want to read paragraph 31?‑‑‑Yes I've read it.

PN6148

You were asked what the basis for what you said was and you didn't provide the details and didn't set out the basis for your statement. What was the basis for your statement?‑‑‑Why I put that in my statement, is that what you're asking?

PN6149

Yes?‑‑‑I was talking about my experience with the clients that I've worked with over the last 18 months and obviously the economic climate within Australia, and those pressures that are - I see that's impacting my clients. So when I go for example to a client if I'm doing an enterprise agreement negotiation I always get the context of how the business is performing and what they're facing and the challenges they're facing, and a lot of the businesses are telling me that they're facing many challenges with the current environment. Some of my clients are government owned so they're facing pressures. The State Government is obviously facing budget pressures, so those clients for example are particularly worried about their financial position and their standing with their stakeholder or their (indistinct) the government. So in the context of an enterprise agreement that obviously plays into determining wages and conditions and what that means for that company or that entity moving forward.

PN6150

You were cross‑examined yesterday on an enterprise agreement that you helped negotiate for one of your clients, and can the witness be shown the - I don't want to use it by name, the exhibit 70 - sorry, exhibit R50 please.

PN6151

I'll show you another document, another enterprise agreement relating to the same client and I've provided copies to my learned friends. What is the date of exhibit R50?‑‑‑The date of the decision?

PN6152

The date of the agreement, yes?‑‑‑It's 21st of January 2016.

PN6153

I'll just take those documents. Just hand me back that document please. I'll hand you a document, a 2012 document and you now have a 2012 document which is unmarked, and exhibit R50 which is a 2016 document?‑‑‑Yes.

PN6154

And you were cross‑examined on clause 16 of the 2016 document, R50?‑‑‑Yes.

PN6155

And can you look at clause 16 of the 2012 document?‑‑‑Yes.

PN6156

And can you tell the Commission whether there's any difference between the two clauses in the two documents?‑‑‑There's been some changes to the clause. Not substantial from what I can view.

PN6157

Now without breaching any confidentiality, to the extent that you can, Mr Scasserra, can you say whether or not you were instructed to try to achieve any changes to what was clause 16 of the 2012 agreement when you came to assist in relation to the 2016 agreement?‑‑‑No, I wasn't instructed to change that clause other than to do some - a little bit of clean - what I call clean up and drafting. But the substance of the clause wasn't to be negotiated on or changed.

PN6158

I tender the 2012 agreement, Commissioner.

PN6159

THE COMMISSIONER: Yes, we'll mark the document which is 2012 FWAA 10760, we'll mark that as exhibit A13.

EXHIBIT #A13 DOCUMENT 2012 FWAA 10760

PN6160

MR WOOD: That's the re‑examination of Mr Scasserra.

PN6161

THE COMMISSIONER: Thank you Mr Wood.

PN6162

Thank you Mr Scasserra, you can step down and are excused?‑‑‑Thank you. Thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.38 PM]

PN6163

MR ATTIWILL: Commissioner, Mr Wood and I have had some discussions during the course of today about what would be an appropriate way now to proceed, but obviously we're in your hands. One way that we thought to proceed is as follows. That's the end of my learned friend's witnesses apart from the chancellor who is at the moment scheduled in for tomorrow. We were provided - I think it was this morning - with the Senate material so I haven't had an opportunity to read it. What we were proposing between the two of us was if the matter was just adjourned till tomorrow, and I'll just quickly articulate why we thought that that might be a good idea.

PN6164

First of all just dealing with my learned friend's case at the moment and Chancellor Flanagan, I'll have then more of an opportunity to read the material that has been provided and make some quick hopefully forensic decisions, and if Chancellor Flanagan is not going to be required by us to present for cross‑examination I could relay that to my learned friend. So that's the first thing. The second thing, in relation to our witnesses you'll recall that Mr Wood told you yesterday, Commissioner, that that was still very much a work in progress - without criticism to my learned friend, indeed a compliment to them that they're taking that step to really be active to look at what witnesses they need to cross‑examine.

PN6165

I understand that that is still a slight work in progress, without any criticism to my learned friend. But they can really advance that if there was this period of time and then really come back to us hopefully early evening to say "Well, look, here's the list that we are developing" and then we could just make a start tomorrow. I can't say I won't be cross‑examining Mr Flanagan but if I am it's going to be of a narrow compass and it would be pretty brief. And then if we did start tomorrow we would be calling Mr Braithwaite, then Mr McCulloch and then Mr Cousner.

PN6166

So there are some thing that we can both attend to, if that was a convenient course to you, Commissioner, and then make a start tomorrow. I think we are doing quite well. I don't pat myself on the back for that. It's more to pat Mr Wood on the back because he's going to be able to really hopefully tell us that there's quite a lot of witnesses that aren't going to be available, and the quicker we know that the better, because we've got lots of people organised, and to make lots of arrangements.

PN6167

THE COMMISSIONER: No, I understand the logistics. Thanks Mr Attiwill.

PN6168

Mr Wood, if need be Chancellor Flanagan is available tomorrow?

PN6169

MR WOOD: Yes, Commissioner, he was a bit jetlagged this morning having had five nights of the last - Commissioner, I can tell you that our current intention is that we are down to 15 witnesses that we are going to require for cross-examination and I think by tomorrow morning that might be a shorter list still. At the moment, the only ones that we require for cross-examination are the three tomorrow, Braithwaite, Cousner and McCulloch, the two experts, Jaski and Dennis, and Whalley - I am afraid I can't pronounce this person's name - Sekyere-Boakyere, Batskos, Trand, Lawson, Jackson, Barrett, Curtis, Hughes, Bayliss and Warren. So I know you were concerned on Friday evening, Commissioner, but I think we are going to finish well ahead of Friday week and perhaps early next week in the evidence.

PN6170

THE COMMISSIONER: Can I get a bet on?

PN6171

MR ATTIWILL: Only if you take the wager.

PN6172

MR WOOD: It depends what sort of odds you want, Commissioner.

PN6173

THE COMMISSIONER: There's probably something in my oath that says I am not supposed to do that. All right, gentlemen, look, that's fine. I note what you say. I remain an eternal sceptic about timing, for no other reason that better we run short. Sorry, that's not the right phrase. Better we end early than wind up running out of time. It's in no one's interests. So, thank you for that, that's helpful. On that basis, you want me to adjourn now and reconvene tomorrow at 10 am?

PN6174

MR WOOD: Yes, Commissioner. Obviously, our last witness is the chancellor, but we have got some documents that will fill our evidential case. It will take a few minutes to tender, but that will be our case.

PN6175

THE COMMISSIONER: All right, on that basis, thank you for your assistance, gentlemen, we'll adjourn and we will see you tomorrow.

ADJOURNED UNTIL WEDNESDAY, 12 JULY 2017 牋牋牋牋牋牋牋牋牋� [3.43 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R52 REDACTED REQUEST FOR APPROVAL APPOINTMENT OF PROGRESSIVE EMPLOYEE RELATIONS MEMORANDUM DATED 21/12/2016............................................................................................................................... PN5199

EXHIBIT #R53 REDACTED VERSION OF MEMORANDUM RE VARIATION TO REQUEST FOR APPROVAL APPOINTMENT OF PROGRESSIVE EMPLOYEE RELATIONS DATED 16/02/2017..................................................................... PN5202

EXHIBIT #R54 UNREDACTED VERSION OF EXHIBIT R52, MEMORANDUM OF 21/12/2016............................................................................................................. PN5242

EXHIBIT #R55 UNREDACTED VERSION OF EXHIBIT R53 BEING 16/02/2017 PN5244

DANIEL SCASSERRA, RECALLED............................................................. PN5251

CROSS-EXAMINATION BY MR ATTIWILL.............................................. PN5251

EXHIBIT #R56 BUNDLE OF EMAILS BETWEEN MAY AND JULY 2017 BETWEEN MR ALEX COUSNER AND MR SCASSERRA.................................................... PN5474

THE WITNESS WITHDREW.......................................................................... PN5761

DANIEL SCASSERRA, RECALLED............................................................. PN5761

CROSS-EXAMINATION BY MR ATTIWILL, CONTINUING................. PN5761

EXHIBIT #R57 DECISION OF THE COMMISSION, 2013 FWCA 7263 DATED 20/09/2013............................................................................................................................... PN5913

EXHIBIT #R58 DECISION OF THE COMMISSION, 2013 FWCA 5556 DATED 21/08/2013............................................................................................................................... PN5915

EXHIBIT #R59 EMAIL DATED 10/05/2017 SENT 10.18 AM SUBJECT "VICE CHANCELLOR'S MESSAGE"........................................................................ PN6029

THE WITNESS WITHDREW.......................................................................... PN6066

DANIEL SCASSERRA, RECALLED............................................................. PN6068

RE-EXAMINATION BY MR WOOD.............................................................. PN6068

EXHIBIT #A12 EMAIL FROM ALEX COUSNER TO HANNAH CLARK DATED 25/01/2017, SUBJECT "NTEU MATERIALS".................................................................. PN6124

EXHIBIT #A13 DOCUMENT 2012 FWAA 10760......................................... PN6159

THE WITNESS WITHDREW.......................................................................... PN6162

Fair Work Commission Transcripts

AG2016/7598, Transcript of Proceedings [2017] FWCTrans 426 (9 October 2017)