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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2015/6)
Educational Services Award
Melbourne
10.08 AM, WEDNESDAY, 27 JULY 2016
Continued from 22/07/2016
PN939
VICE PRESIDENT CATANZARITI: Thank you. Ms Gale?
MS GALE: Good morning, your Honour. I need to advise a change of appearance. I have today with me Ms Roberts for the NTEU. Mr McAlpine will resume his appearance after he's concluded giving evidence and I would like to call Mr Ken McAlpine to the witness stand.
<KEN MCALPINE, AFFIRMED [10.09 AM]
EXAMINATION-IN-CHIEF BY MS GALE [10.09 AM]
PN941
MS GALE: Thank you, Mr McAlpine. You have - perhaps before I go to that I could provide your Honours with a replacement copy of Mr McAlpine's first statement. Unfortunately, it's large, and if I could just explain that this was too large to provide by email in the way that the other redacted statements were. The statement at the front has been redacted. The attachments are the same as previously, except that they are now paginated.
PN942
VICE PRESIDENT CATANZARITI: Excellent.
PN943
MS GALE: And the previous attachment K has been removed. So if I can turn to ‑ ‑ ‑
PN944
COMMISSIONER JOHNS: Can I just ask, attachment G we had problem with.
PN945
MS GALE: It is in the folder that's just been provided.
PN946
COMMISSIONER JOHNS: Fantastic. Thank you.
PN947
MS GALE: So, Mr McAlpine, can I ask you whether you have prepared three statements for these proceedings?‑‑‑Yes, I did. One on about 11 March, one that was lodged on 3 June and one that I think was lodged on 11 July.
PN948
If we can turn to the one prepared on 11 March. Do you have a copy of that with you?‑‑‑Yes.
*** KEN MCALPINE XN MS GALE
PN949
Do you have any corrections to make to that statement?‑‑‑Yes, I do have two minor corrections. In paragraph 1 in the fourth line the words there "prior to 1988" should be "prior to 1993". So the NTEU came into existence in 1993 but I've worked as an industrial for the NTEU or one of its predecessor unions since 1988. So that's just a typing error by myself. The second one is in paragraph 11.
PN950
I'm sorry, before you move to the second one, can I just check that you're referring to the fourth line of paragraph 1 and the year 1988 appears twice in that line and in both instances it should be amended to 1993. Is that correct?‑‑‑No, the second one should be amended to 1993.
PN951
I see. Thank you?‑‑‑I'm sorry. The second change is in paragraph 11. It's simply again my mistake. The second‑last line it says, "Than called the Australian Vice‑Chancellors' Committee." It should be. "Then called the Australian Vice-Chancellors' Committee." So there's a body now called Universities Australia and its name used to be the Australian Vice‑Chancellors' Committee, and those are the corrections.
PN952
So with those corrections do you adopt this as your evidence in these proceedings?‑‑‑Yes, I do.
PN953
If I could tender statement 1 of Ken McAlpine.
VICE PRESIDENT CATANZARITI: That will be exhibit G.
EXHIBIT #G STATEMENT 1 OF KEN McALPINE DATED 11/03/16
PN955
VICE PRESIDENT CATANZARITI: Any objection, Mr Pill?
PN956
MR PILL: No.
PN957
MS GALE: If we can turn to the second statement, the 3 June statement. Do you have a copy of that with you?‑‑‑Yes, I do.
PN958
Do you adopt that as your evidence in these proceedings?‑‑‑I do.
PN959
I tender that second statement, your Honour.
PN960
VICE PRESIDENT CATANZARITI: I'll just grab it to make sure I mark it at the same time.
*** KEN MCALPINE XN MS GALE
PN961
MS GALE: A redacted version of that was provided yesterday and I do have hard copies of the redacted section.
PN962
VICE PRESIDENT CATANZARITI: The version I have is blacked out in paragraph 8.
PN963
MS GALE: Yes, that's correct.
PN964
MR PILL: It's a very minor matter and I apologise to my friend. The witness isn't actually being asked whether the statement is true or correct. It might just be appropriate ‑ ‑ ‑
PN965
VICE PRESIDENT CATANZARITI: I think he's going to - I thought, he'd do it at the end, do it - just tender them all in one hit.
PN966
MR PILL: All right. If the Commission pleases.
VICE PRESIDENT CATANZARITI: Yes. I would assumed that, Mr Pill. So that will be exhibit H.
EXHIBIT #H STATEMENT 2 OF KEN McALPINE DATED 03/06/16
PN968
MS GALE: If we can turn to your third statement, Mr McAlpine, from 11 July. Do you have a copy of that statement with you?‑‑‑I do.
PN969
And do you adopt that as your evidence in these proceedings?‑‑‑I do.
PN970
I tender that third statement, your Honour.
VICE PRESIDENT CATANZARITI: That will be exhibit I.
EXHIBIT #I STATEMENT 3 OF KEN McALPINE DATED 11/07/16
PN972
MS GALE: That again just should have a section marked out in black on - towards the end at paragraph 5. Mr McAlpine, are those statements true and correct to the best of your knowledge?‑‑‑They are.
*** KEN MCALPINE XN MS GALE
PN973
Thank you. No further questions.
VICE PRESIDENT CATANZARITI: Thank you. Mr Pill?
CROSS-EXAMINATION BY MR PILL [10.14 AM]
PN975
MR PILL: Yes, thank you, your Honour.
PN976
Good morning, Mr McAlpine?‑‑‑Morning.
PN977
So as I understand your evidence, you've been with the NTEU since 93 and an industrial officer since 88?‑‑‑Yes, with one of the predecessor unions to the NTEU, but only covering general staff.
PN978
Effectively you've had a career in the union?‑‑‑I have.
PN979
You've never yourself worked in a university?‑‑‑I have, but only - I was an employee of the University of Adelaide at one stage, yes.
PN980
All right. So when was that?‑‑‑1981, 1982.
PN981
Now, during ‑ ‑ ‑?‑‑‑I should point out, I have also been, I mean, in - I'm one of those statistics, I suppose. I've been a guest lecturer occasionally at a number of universities as well, and in a paid capacity, but I don't count that, obviously, as my main occupation.
PN982
All right, thank you. In the time you've been at the NTEU it's fair to say you've had central roles with the NTEU in relation to enterprise bargaining?‑‑‑Yes.
PN983
That included enterprise bargaining strategy?‑‑‑Yes.
PN984
The development of claims?‑‑‑Yes.
PN985
The drafting of clauses?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN986
It's fair to say you probably more than any other in the union had a central role in bargaining over the last 10 years?‑‑‑I think the - I still think the elected officers play a more central role in terms of deciding what it is we're actually going to do, and probably Graham McCullough, the general secretary, has had a more direct, hands‑on role in bargaining than me, but I would say I was in the second tier, if you like, with a few others, in terms of central bargaining and like strategies, yes. I'm not really disagreeing with you, I'm just saying I don't think I want to say that I've had a more important role than my boss.
PN987
I wasn't trying to diminish the general secretary's ultimate say, but it's fair to say that amongst other things you've produced bargaining manuals that the branches have used that have included claims?‑‑‑Yes. I have co‑produced those, but, yes, I have.
PN988
Yes, thank you. In terms of award proceedings it's also fair to say you've had a central role in a number of award proceedings for the NTEU over the last decade?‑‑‑Yes. Over the last two decades, yes.
PN989
The last two decades, and you were involved in the modern award proceedings that occurred in relation to the higher education awards in 2008, 9 and 10?‑‑‑Yes. I had some role in that.
PN990
What was your role in that?‑‑‑Well, I was - Eleanor Floyd who was one of my colleagues who has now retired had central carriage of the award matters, but I played a role in relation to advocacy in some of those proceedings so I was given the task of turning up on the day and putting the arguments, essentially.
PN991
Yes, and involved in putting the submissions on behalf of the NTEU?‑‑‑I was, yes.
PN992
And in this proceeding have you been involved in drafting the claims and the submissions?‑‑‑I've been involved in those things, yes. Yes. I think I've been - unless there have been meetings of the officers that I haven't known about, I've probably been at nearly all the meetings that have been involved in drafting the claims, yes.
PN993
All right. So it's fair to say you've had a central role in the drafting of the claims in this proceeding?‑‑‑Yes.
PN994
In terms of making the modern award, would you agree with me that in that process there was no claim or submission that there should be a policy familiarisation allowance?‑‑‑No, there wasn't. No.
*** KEN MCALPINE XXN MR PILL
PN995
There was no claim or submission that there should be a discipline currency allowance?‑‑‑Yes, that's right.
PN996
There was no claim or submission that the overtime clause for general staff needed to be enhanced or beefed up to include the obligation that you now seek in this award variation proceeding?‑‑‑No, that's correct.
PN997
There was no claim or submission for overtime for academic staff?‑‑‑No. There was a claim about workload in that, but it was - it was a brief claim, but it didn't go to the question of overtime, no.
PN998
It didn't go, did it, to any suggestion that hours should be recorded for academic staff?‑‑‑No, certainly not.
PN999
Or an attempt to regulate research time in the way that you're now seeking in the current clause?‑‑‑Well, I think that's a question of - well, as long as you qualify it with in the way that we're seeking to regulate now, yes, it is different, but I wouldn't say that it didn't seek to regulate the research work to the extent we are in the current - I wouldn't say that it wasn't trying to regulate the research work indirectly.
PN1000
That claim, at the time it wasn't pressed?‑‑‑As to whether it was technically not pressed, I genuinely can't remember. I genuinely can't remember.
PN1001
All right, but it's certainly clear that the Full Bench did not adopt it?‑‑‑Yes, that's self‑evident.
PN1002
Do you accept that in that context the NTEU agreed to the inclusion of what is now clause 22.1, which - and I can take you to it if I need to, but it's the clause that refers to ‑ ‑ ‑?‑‑‑I know the one.
PN1003
‑ ‑ ‑ for the purposes of the NES the ordinary hours are 38, or to that effect?‑‑‑Yes, that's right.
*** KEN MCALPINE XXN MR PILL
PN1004
In terms of the enterprise bargaining can I put to one side for the moment the academic hours issues to start with? In relation to a number of the other matters of substance that you're now seeking - and I'll deal with them together, but they include your part B, which is an additional allowance for casual academics for policy familiarisation, a separate allowance for discipline currency, a clause that obliges employers to take positive steps to prevent employees from working additional hours and ICT allowances. Do you accept that in relation to all of those matters, that in a number of bargaining rounds they have been pursued by the NTEU across each of the universities in the sector?‑‑‑Now, sorry, there were four parts to that.
PN1005
I can break them down for you?‑‑‑No, that's - yes. The claim in relation to taking reasonable steps to ensure that employees are not working uncompensated additional hours has been pursued, I think - I wouldn't say at all universities, but it has - it was pursued, I think, in the previous round of bargaining, that is, essentially, I think, the period 2012 to 2015. Yes, I think that one was pursued fairly generally, yes.
PN1006
The others are the casual academic - so claims for increased allowances, policy familiarisation, discipline currency?‑‑‑Let me just put it this way. I don't think we had a - I don't think the union had a national policy of pursuing that claim everywhere. I think that was a claim that some of our branches chose to pursue. I'm fairly sure that's right. I wouldn't put it any higher than that.
PN1007
VICE PRESIDENT CATANZARITI: So when you say "a claim", do you mean all three of those claims then?‑‑‑Sorry, the claims about discipline currency for casual academic staff, and I think maybe - I'm not sure how widely we claimed the one about the policy familiarisation. I just - I'm not absolutely sure about that. So if I could call those the casual pay claims, if you like, that are now before the Commission.
PN1008
MR PILL: You accept that they have been pursued at some universities?‑‑‑Yes.
PN1009
And in some cases there's been an agreement reached to include a clause - aware of that?‑‑‑About which - sorry, which one? I'm not trying to be difficult. I just want to make sure I ‑ ‑ ‑
PN1010
Yes. No, fair comment. In some cases there's been provisions included that provide, for example, for induction for academic sessional staff?‑‑‑Yes.
PN1011
That includes policy familiarisation elements?‑‑‑Yes. Yes. If that's what you're referring to, that's probably the cause of my scepticism, because the claim in these proceedings is not for an induction session, it's simply - it's for an allowance from which an induction session, paid induction session, can be deducted. So we did pursue paid inductions, I think. I'm not sure that we pursued the allowance anywhere.
*** KEN MCALPINE XXN MR PILL
PN1012
All right. Perhaps I could ask the witness be shown - it's actually two documents that are clipped together, and I'll explain it once handed up. One for the witness. I'll just give you a moment, but can I explain to you that the - and I'm sorry, it doesn't have a staple in it, but the first document which has a covering letter from the NTEU to Professor Hilmer who is the Vice‑Chancellor at the University of New South Wales and then attached a log which starts "Without prejudice" and goes through to 29 ‑ ‑ ‑?‑‑‑Yes.
PN1013
I'm sorry, I've only handed you one of the documents. Mr McAlpine, I'll go back to the first document, the one that's got University of New South Wales Branch NTEU. So this is a claim in 2013, on its face. Are you familiar with these sorts of documents?‑‑‑I'm familiar with - yes, I'm familiar with these sorts of documents. I've been involved in drafting them for many years. Can I make one qualification to what I said earlier which might be relevant to the Commission. Since 2012 I have been, as I think I say in my statement, a union education officer. So although I've been closely - I mean, I've been well aware - I'm not trying to evade anything here. I've been reasonably aware of all these things that you're referring to - I moved out of the union's industrial unit in 2012. So I'm not trying to avoid anything, I'm just saying my - for example, I wouldn't have seen this document because I wasn't directly involved in that work anymore, but I have seen many, many documents like this.
PN1014
Yes?‑‑‑So I'm not - I just wanted to qualify lest the Bench thought I was suddenly suffering from bad memory or something.
PN1015
All right, thank you. So can I just highlight for you - I won't ask you about it, but I'll just highlight for you, in that first document, the without prejudice log, on the third page at 7.4 first of all there's reference to excessive workloads and there's reference to seeking that, "The agreement provide that the university will take all reasonable steps to ensure that employees are not working hours in excess of the ordinary hours of work prescribed by this agreement except in circumstances where the employee is receiving appropriate overtime as prescribed"?‑‑‑Yes.
PN1016
"All professional staff to have the opportunity to accumulate flexi time and such accumulations will only be reduced by time taken", and that, "Professional staff, casuals, be provided with paid induction and professional development." So you'd accept on its face that that largely mirrors the claim that you're now seeking in relation to general staff in this award variation?‑‑‑Yes. I mean, it's slightly different, but it's essentially in the same terms, yes.
*** KEN MCALPINE XXN MR PILL
PN1017
Yes, and then over the page at 10.3 we have, "Improved conditions for casual academic employees", and, second sentence, "These will include but will not be limited to improved marking arrangements, training, mentoring, networking and employment opportunities for casuals, improved casual recruitment and retention practices, improved access to facilities." I'll come back to that second document and show you how that was translated by the NTEU into actual claims. Then, whilst we're there, 10.4, academic workloads, you'll see the agreement provides for each academic staff member an effective and quantifiable periodic cap on the hours to be worked in the teaching and related duties on measurable student load based on a fair average assessment of the time associated with those teaching responsibilities, and the clause goes on, but in effect they're seeking a clause that's about regulating effectively and fairly, to use some of the words that are in there, the teaching and related duties?‑‑‑Yes.
PN1018
Then can I take you to the second document? Now, this document - and I do have a complete copy if you need to see it, but in the interests of rain forests - the NTEU's document ran to 70 pages - I've just extracted part of that. So this is a without prejudice draft supplied by the NTEU and Mr Ward gives evidence about the fact that there have been these claims - or will give evidence, I should say. Can I just direct you to a couple of the clauses that are in here? You will see at the bottom right page 20, which is the second page of ‑ ‑ ‑?‑‑‑Yes.
PN1019
The second clause there, clause X, "Discipline currency allowance"?‑‑‑Yes.
PN1020
I appreciate the qualifications you made before about your transition to more of a training role, but you accept on its face, and you can read it, that what you've got there is a claim for a discipline currency allowance that's similar - it's actually a bit different, but it's similar to the claim that you're now pursuing in this award variation?‑‑‑Absolutely, yes.
PN1021
In terms of it being different, in that case effectively what you were seeking was five hours' pay per subject. See that at clause 2?‑‑‑Yes.
PN1022
In terms of - towards the bottom of the page, you also sought an information technology allowance?‑‑‑Yes.
PN1023
And over the page ‑ ‑ ‑?‑‑‑Although that, I think - yes, that relates to casual employees, not all employees. So I think it's slightly different, it's about casual employees, whereas our current claim is about all employees.
PN1024
Yes. So it's fair to say in that case you chose in bargaining to pursue an over‑award allowance for casuals for IT?‑‑‑Well, our University of New South Wales branch chose to do that, yes.
PN1025
Yes. The branch isn't a separate entity. It's part of the NTEU?‑‑‑No, but it is important to realise that the actual formulation of these claims is - you said "you". I just wanted - I mean, I didn't.
*** KEN MCALPINE XXN MR PILL
PN1026
Yes?‑‑‑The NTEU nationally didn't. Under our rules our branches have a fair degree of autonomy and the branch decided to pursue that claim.
PN1027
Yes. Is it fair to say that the NTEU national executive have to endorse all agreements before they're approved by the NTEU?‑‑‑Agreements, yes.
PN1028
Yes?‑‑‑Not claims.
PN1029
Yes, thank you. Over the page there's a claim - they're all unfortunately "clause X", but the first is for a casual staff professional development fund, the second is to provide recognition for casual academic research publications, and the last one there which goes to the second half of the page covers a range of access to - I'll shorthand it as resources. See that?‑‑‑Yes.
PN1030
You'll see at the bottom there, number 6, there was a claim for if you're required to apply the policies of the university, employed to undertake a series of lectures, not previously employed, then you will be entitled to five hours at the other academic duties rate for the purposes of acquainting himself or herself with the policies of the university?‑‑‑Yes.
PN1031
Now, other than the fact that it's five rather than 10, do you accept that that's broadly what you're now seeking in the award variation here?‑‑‑Yes.
PN1032
I take it from the answers that you've - well, can I seek to tender those documents? I appreciate the witness has only given a qualified recognition, but in the nature of this proceeding I'd seek that they be tendered and if necessary Mr Ward can attest to them if there's any contention.
PN1033
VICE PRESIDENT CATANZARITI: Yes. Any question to this, Ms Gale?
PN1034
MS GALE: No, your Honour.
VICE PRESIDENT CATANZARITI: All right. They'll be exhibit 7 and exhibit 8.
EXHIBIT #7 LETTER FROM NTEU UNSW BRANCH TO UNIVERSITY OF NEW SOUTH WALES
EXHIBIT #8 EXTRACT FROM UNSW (ACADEMIC STAFF) ENTERPRISE AGREEMENT 2014
*** KEN MCALPINE XXN MR PILL
PN1036
MR PILL: Now, Mr McAlpine, then I can take you to other claims from other universities if necessary, but perhaps I can short‑cut it. Do you accept that in bargaining typically the NTEU has pursued in bargaining claims in relation to increased allowances for casual academics?‑‑‑Yes.
PN1037
Including, as we've just seen in relation to what I'll shorthand as policy familiarisation?‑‑‑Yes.
PN1038
Discipline currency?‑‑‑Yes.
PN1039
And ICT allowances, or similar allowances?‑‑‑For casual employees, yes. Yes.
PN1040
Similarly, we saw an example of a clause seeking to impose an obligation on the employer to take positive steps, or reasonable step, to prevent employees from working additional hours - this is general staff now - without receiving essentially compensation?‑‑‑Yes. I think - just to paint a full picture, I think that the one about the general staff hours was pursued pretty much across the board.
PN1041
Yes?‑‑‑I think the others were pursued at many and probably most places, but I - that would be my understanding.
PN1042
Yes, and I also take it from some of the answers you've already given that there were some minor nuances or variations in what was claimed at each university across those claims?‑‑‑I'm not answering from direct knowledge and memory, but those sorts of claims are nearly always modified by our local branches, so I would be very surprised if that were not the case.
PN1043
And when you say modified, modified before they're put as a claim or - after or both?‑‑‑Modified before they're put as a claim, yes, by the local branch.
PN1044
Yes?‑‑‑Sometimes against my advice.
*** KEN MCALPINE XXN MR PILL
PN1045
VICE PRESIDENT CATANZARITI: So what does that mean, Mr McAlpine, so that I'm clear? There's a central position from the NTEU and then it's left to the branches to modify the central position of these claims?‑‑‑All right, just in very brief picture, there are some claims where all our branches get together and decide that there will be a claim which - doesn't have to be these words, but a claim that has the following effect which should be pursued everywhere and then there will be other claims which our national council, which is all our branches coming together, decide is recommended that branches should pursue this claim, but if they decide not to or to pursue it in a different form, then that's up to them. So there's different categories, and I think - for example, I think the one about general staff hours might have been one of those ones where the branch has decided that everybody should pursue that, whereas some of the others I think were more left to, you know, local discretion about whether it was pursued and in what form.
PN1046
MR PILL: Then, lastly, when the agreement has been negotiated it comes back to the centre, comes back to the NTEU, you review the agreement?‑‑‑Well, somebody in the national office does, yes, and the officers make a recommendation to the national executive.
PN1047
Yes?‑‑‑It's pretty rare that - when we say the national office - sorry, the national executive approves agreements, the national executive doesn't approve agreements that branches don't want approved.
PN1048
Yes?‑‑‑So it's not like the national executive decides - I mean, in a formal sense the national executive decides, but it's not like in a real world sense the national executive decides in isolation from the members or from the branch.
PN1049
Yes. Can I assure you that I'm not fishing for patterning bargaining submission?‑‑‑No.
PN1050
But there is a degree of centralised coordination in the enterprise bargaining?‑‑‑Absolutely. Absolutely.
PN1051
It would be intended that if you were successful in a number of these claims to then pursue them across the board in bargaining across the sector?‑‑‑That would vary from claim to claim. That really would vary from claim to claim. So I could give you an example. In relation to domestic violence leave the union has attempted to be a pace‑setter and our position is that we want good clauses, not just second‑rate clauses, so our view would be that we'd rather have 10 good, exemplary clauses than to have 10 good, exemplary clauses and 15 mediocre clauses. So it varies from claim to claim, but as a - and it wouldn't necessarily be the case that the fact that we had a recommended claim about a particular issue that we succeeded at a particular institution would necessarily mean that we were going to try and, as you put it, flow that across the sector. Sometimes we would, sometimes we wouldn't.
*** KEN MCALPINE XXN MR PILL
PN1052
In relation to the award claims that you've got here, the NTEU's position would be to seek that those be translated into bargaining claims in the current and future rounds?‑‑‑No, not necessarily. That is not our position. That's not the position we've put to the Commission and that's not our position. Given the relationship between the salary levels and the other conditions of employment, some of the claims we would - some of the claims I think we would seek to fairly uniformly roll across. I think the general staff hours claim, which we see really as a system of making the safety net enforceable in a practical way, we would. For example, the academic staff overtime claim I would be quite surprised if we tried to roll that out in bargaining. That is not our purpose.
PN1053
Now, in relation to a number of the claims we've touched on you've achieved some success at some universities?‑‑‑Yes.
PN1054
And not at others?‑‑‑Yes.
PN1055
It's been rejected and the NTEU have endorsed the agreement without that claim in?‑‑‑Absolutely.
PN1056
In relation to academic hours and bargaining, do you accept the NTEU has negotiated clauses in every enterprise agreement at public universities that deals with the allocation of academic work?‑‑‑Yes. Yes, I think - yes, that's right.
PN1057
The clause that is sought to be included in the award in this matter, it does not appear in any of those - I'm never quite sure whether their number is 39 or 41, but let's call it approximately 40 universities. The clause that you've sought to be included in the award in this matter regarding academic hours, it does not appear in any of those enterprise agreements?‑‑‑No. That's never been sought.
PN1058
Right. Is it taken from any award or industrial regulatory instrument?‑‑‑Look, in its formulation we looked at some other instruments, but the answer is no. I mean, it depends what you mean. If you mean, for example, that it provides for the payment of overtime, then yes. If you mean that it doesn't seek to measure directly the recording of academic hours, then no. I mean, there are certain aspects that are similar to other instruments, but broadly speaking it is designed to meet the needs of this industry, not other industries.
PN1059
But it's not taken from any industrial instrument in this industry?‑‑‑No. No, because it's a safety net provision.
*** KEN MCALPINE XXN MR PILL
PN1060
Well, I'll come back to your clause in some detail. Do you accept that the academic hours provisions have been negotiated at most universities in enterprise agreements prior to 2010?‑‑‑Yes. Yes, I think academic workload provisions started to appear in enterprise agreement in the mid to late 1990s and gradually spread, and I think by the beginning of the century were virtually - there was something about academic workloads in every enterprise agreement - I think.
PN1061
Since the making of the modern award you've effectively maintained those in subsequent agreements?‑‑‑We've maintained that there is an academic workloads clause, and in some cases we have improved that clause, yes.
PN1062
Since the making of the modern award which commenced 1 January 2010 are you able to say approximately how many enterprise bargaining agreements the NTEU have negotiated across those 40-odd universities?‑‑‑Since 1 January, I - when I say I'd be guessing, it would be an educated guess. Now, enterprise agreements - and if you're talking about the academic workloads clause - let's exclude the agreements that only apply to general staff, but if we do that then I would guess that we've probably negotiated about 70, maybe 60.
PN1063
There's essentially been - call it two rounds, if you like, hasn't there, there's been two rounds of bargaining since 2010?‑‑‑Yes.
PN1064
And agreements negotiated at each of those universities?‑‑‑Yes.
PN1065
Each of those agreements obviously was able to be approved by the Fair Work Commission?‑‑‑Well, they were approved.
PN1066
Yes, and supported by statutory declarations from your union?‑‑‑Yes. Yes.
PN1067
There might be one exception in New South Wales where the CPSU ‑ ‑ ‑?‑‑‑Yes.
PN1068
‑ ‑ ‑ endorsed and you opposed the approval, but ultimately it was approved, but with that exception they were all supported by the NTEU?‑‑‑Yes. I think we opposed an agreement, the making of an agreement - no, I'm sorry, that was an agreement - those were agreements for general staff. We opposed the making of some agreements for general staff, but, yes, that's right, some other agreements in relation to general staff, but the academic ones I think we supported all of them except that one agreement at CS - at Charles Sturt University, I should say.
*** KEN MCALPINE XXN MR PILL
PN1069
I'd just like to ask you some questions about academic employment. Do you accept that one of the key features of academic employment and the profession of being an academic is autonomy, flexibility, academic freedom and self‑direction?‑‑‑Well, I think I went to that in my statement, and I think that what I said in my statement is a pretty fair summary of that. You'd need to break those down. I mean, autonomy, there is a level of autonomy. There is a level of autonomy that exists in academic employment that's not found in other types of employment, but for - you used the words "self‑directed". Now, if we use, for example - well, as I said in my statement, if we use teaching as an example, in 30 years as an industrial officer in higher education I've really never seen anybody being told, "We don't like the line you're taking in this Japanese history course. Here's a new set of slides. Do this." So as to what the presentation is, as to what the position of the professor - and I use that in the generic sense, the person who professes - what the professor's position is about the truths of Japanese history or whatever it is, I've never seen any circumstance, I'd have to admit, where a person is told, you know, "This is what we want to tell the students and this is what you've got to include in your lectures." As to, for example, how the course is to be assessed, how the course is to be evaluated, what curriculum goals it has to meet, those have become over the last 20 years more and more and more regulated. So there are - an I only use that as an example - there are aspects of the work which are autonomous and there are aspects of the - and self‑directed, and there are aspects of the work that are not. So, for example, I think it came up in the opening the other day, there was a discussion about research. Research isn't - is autonomous in the sense that what takes the interest of the academic is not prescribed by the university. Nobody says, "We want you to apply for a grant for this", however, for example, I think it was at the University of Melbourne that in the last round of bargaining there was a claim by the management saying an employee can be declared redundant because of technological change, financial exigency, and I think they wanted to add another one saying or because the employee's research work does not align with the strategic objectives of their academic unit. Now, that's a pretty big infringement. That's a pretty big infringement on what people are allowed to research. People are given performance targets saying, "You have to generate this much research income. Now, that means that they have to say, "Well, I think this is the most academically important and interesting area to research but that's not going to bring in any research grants so I'm going to have to do research in this area because I have to meet my performance targets for research income." So I'm not - I just don't think the answer - to say academics are autonomous and self‑directed, I certainly would not want to say that that's not true, I just think you need to qualify how - the extent to which that's true and the extent to which it's not, and it's true and it's not true. So that's - I'm just trying to - and that is based upon - and that isn't a - well, it's a conclusion, but as a senior officer in the national office we get calls from members and we get calls from staff in our branches who say, "This person is being told they have to teach this number of hours and they say that that's an infringement on their academic autonomy", and I've had to say, "Well, no, that's not an infringement on their academic autonomy. They're paid to teach. Provided it's consistent with the agreement and their contract of employment they can be told, 'You have to teach this number of hours.'" So they don't have autonomy over that, nor should they. So I'm just trying to give a complete answer. Sorry if that was a bit long.
PN1070
I also asked you - and it was a compound question?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1071
You'd accept that it's a key feature and an integral part of being an academic that they have academic freedom?‑‑‑It should be, yes. They certainly should. Academic freedom should be a defining characteristic of a university and certainly I think in practice most academics enjoy academic freedom and, yes, it's an essential characteristic. It's a much misunderstood concept, including by some academics, but nevertheless it is a central concept.
PN1072
Well, perhaps you can advise the Bench from your perspective, the breadth of academic, what does it include?‑‑‑Okay, well, Ken McAlpine's theory of academic freedom I'm sure isn't of great interest to the Bench, but there are a number of instruments. The ones that are most commonly cited are the UNESCO recommendation on the status of higher education teaching personnel, and the second one in terms of - although it's from the US, it's called The 1940 Statement on Academic Freedom and Tenure, which is the most cited - those two are the most cited international instruments, because the US tends to set the pace in this area. So academic freedom is the right to freely pursue research, to publish findings and to control the content of one's teaching and to exercise free speech in relation to one's own discipline and in relation to - essentially universities are generally described in their Acts as bodies corporate and politic - in relation to the affairs of the university of which they are a member. So those two things, but academic freedom curtails - academic freedom means, ironically, that academics don't enjoy the same free speech as citizens in general. So if you're an academic in medicine and you say replicated research shows that vaccinations cause autism, then if I say that as a member of the general public I'm entitled to say that, but if I say that as an academic in medicine then unless there are replicated studies that show that, I'm in big trouble. So I actually have - my right of speech is in fact curtailed by the discipline. It's one of the reasons it's called a discipline, academic discipline, because it imposes a discipline on the academic. You don't have the right to speak gratuitously outside your field of expertise or to pretend that the university - that somehow you're speaking on behalf of the university. So those are some of the key points of what are the elements of academic freedom. So it doesn't give you the right to be abusive because that's not - and I think the terms might be from the 1940 statement. That's not engaging in a genuine search for truth. So if you call the dean an idiot in a public meeting you're not exercising academic freedom. If you say the dean's proposal to restructure the faculty is a terrible idea because of X, Y, Z, then you are exercising academic freedom. So academic freedom gives academics rights that certain other employees have and imposes obligations that certain other employees don't have.
PN1073
Putting aside public comment ‑ ‑ ‑?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1074
‑ ‑ ‑ in terms of - and I think, if I wrote it down correctly, academic freedom includes rights to control the content of your research and the content of the teaching materials that you produce?‑‑‑The content - I should say, the findings. The findings. Academic freedom doesn't necessarily - there's a grey area where you say, "I want to study this", and your academic colleagues collegially say, "Well, I think that's been proven. I don't think that's an area of serious academic pursuit", you know, then I think that there's a sort of - there's a give and take there, but if you carry out research and you find this or that, you're entitled to publish that. That's really - it's the right to publish your findings and to not be directed in how you do - in how from an academic point of view you do your research.
PN1075
Yes, so just to flesh that out with an example, if we take the contentious issue of climate change ‑ ‑ ‑?‑‑‑Yes.
PN1076
‑ ‑ ‑ I can choose to research in climate change, I can choose the research question that I'm going to pursue, how I'm going to pursue it, and I might even express a very unpopular finding about that, and provided I'm a research scientist in that discipline area, that would fall within the scope of academic freedom?‑‑‑Yes, that's right.
PN1077
Now, I also asked you about flexibility?‑‑‑Yes.
PN1078
Do you accept that academics enjoy, in terms of flexibility as to when, where and how they work, more flexibility than general staff in universities?‑‑‑More flexibility than general staff, yes.
PN1079
And indeed more flexibility, I'd suggest, than any other employee in any industry?‑‑‑I couldn't comment on - maybe in some of the creative arts areas, I wouldn't be sure, but as a general proposition, yes, remembering that there are certain extreme rigidities, so the flexibility works in both directions. So, for example - and I think I might have gone to this in my statement, that if an academic has to mark 400 exam papers in seven days there is flexibility around their work. We know what that flexibility is. They'll be working 12 or 13 hours a day for seven days. So all I'm saying is that that flexibility is a quid pro quo. There's certain things you have to do on tight timelines and involve very heavy workloads at particular times which you simply can't escape. You can't say, "I have to go to my children's birthday party, because" - "I can't, because I have to do this", even though it's Sunday. So, yes, many academics value the flexibility they have, that's true, but I just want to make the point, there's certain rigidities built in as well. So, for example, many universities simply say, "You cannot take annual leave during teaching time at all", and whether that's - I'm not saying that's a good or a bad thing, I'm just saying that's - but your general proposition, with those qualifications, is correct.
PN1080
Yes, and indeed Professor Hughes‑Warrington - you're familiar with her?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1081
She's the deputy vice‑chancellor of research at the ANU. She will give evidence that the key features of academic employment include autonomy, flexibility, academic freedom and self‑direction, and picking up on a comment you just made, she will give evidence that they are highly valued by academic staff. You'd agree with that?‑‑‑To the extent they exist they are highly valued, yes.
PN1082
She will also give evidence that they're an integral part of academic employment and trust in the academic cohort. Do you also agree with that?‑‑‑An integral part of academic employment. Academic freedom, yes - yes, I think that - sorry, there were two propositions. One was they were integral to academic employment. I agree with ‑ ‑ ‑
PN1083
And trust in the academic cohort?‑‑‑I don't see how the flexibility is integral to - is essential to trust.
PN1084
Well, it's a relationship, isn't it, Mr McAlpine where an academic staff member outside of allocated classes and some mandatory admin is effectively free to determine when, where and how they work? They're not monitored. The head of school may have no idea whether the academic is actually at the university on a particular Friday?‑‑‑Well, the head of school may have no idea, but the person, for example, who has to go to Bali to do research for two weeks, they know where they are and they know they have to be in Bali for those two weeks. So, sure, I would say that the flexibility relies on trust. It isn't what causes the trust. There is a high level of trust and that's what gives rise to the capacity for flexibility. I mean, the two are linked, yes. I don't have any great argument with what was said in that witness statement.
PN1085
Because effectively the academics are professionals and there is a degree of trust that they will exercise their academic judgment and pursue their research in the way that they determine appropriate?‑‑‑Well, there is a level of trust. How high that level of trust is is arguable given the more and more prescriptive performance and output requirements that have been established over the last five, 10, 15 years. So I attached to my statement the other day - or earlier in the year, sorry, policies on - I asked to get policies on academic performance and it was enormous, and, I said to one of my colleagues, "Twenty years ago that would have been about a tenth as big." So the trust element - I think the trust element is in serious decline, but clearly it still rests upon trust, in the sense that you say to somebody at the beginning of a year, "We expect that you will get two publications done this year. We expect that you will bring in $100,000 worth of grant income. We expect that you will make five grant applications." Somebody's not running into your office every week to say, "Has that happened? How are you going?" So in that sense I agree, there is a high level of trust and therefore a high level of accountability.
PN1086
Yes. Now, academics have a mix of activities and they can generally be described, do you accept this, as teaching and teaching related activities, so one box of activities, research and research related activities?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1087
And then service, someone's service/community or other contribution, that's a third box?‑‑‑Yes.
PN1088
And some universities split out a fourth box, which is leadership, et cetera?‑‑‑And most, I would say - I accept all that. Often - I would say a more common one was teaching, research, administration and service. Administration is - because that's not leadership, necessarily, that can occur at lower levels as well, but, yes, I mean, I think that the terms are used differently at different institutions.
PN1089
Yes?‑‑‑But, yes, that's a fair description.
PN1090
The administration you refer to, it's often lumped under service?‑‑‑Sometimes. I would say generally it's kept separate as a - there's teaching, research, administration and service. So service is things like - or sometimes teaching, research, administration and community engagement. So, I mean, I don't want to quibble, it's just that the labels - I would have thought administration is one of the things at most institutions that people are given some sort of workload in relation to.
PN1091
All right. Now, in terms of teaching and research academics, if I can use that term, so your traditional academic ‑ ‑ ‑?‑‑‑Yes.
PN1092
‑ ‑ ‑ there's often quoted reference to 40-40-20, being 40 per cent teaching, 40 per cent research, 20 per cent service. Do you accept that?‑‑‑Yes.
PN1093
You'd also accept that those proportions vary, they're indicative?‑‑‑Yes.
PN1094
And that ‑ ‑ ‑?‑‑‑And - yes. Yes.
PN1095
And that we also have language around there are some academics who are teaching intense or research intense. Do you accept that?‑‑‑Yes. Yes, and there are some that are called research only.
PN1096
Some that are called research only. Indeed, there are some that are called teaching only?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1097
And so typically a teaching intense or teaching only might be doing 70 per cent teaching and teaching related activities and perhaps some scholarship related to teaching. Do you accept that?‑‑‑Yes - well, let me put it this way, and again I don't to quibble. There will be a workload model that says that they spend 70 per cent of their time doing teaching, 20 per cent on scholarship and 10 per cent on service administration, let's say.
PN1098
Yes?‑‑‑So there will be a policy or a workload model that says that's how it works.
PN1099
Yes, okay, and even if we look at our teaching and research traditional academic, 40-40-20, you accept that it will also vary across years, that in some years they'll be doing more research and less teaching and conversely, in other years they'll be doing more teaching and less research?‑‑‑Yes, there's no doubt. If you get a research grant - if you get lucky and you get a research grant, then often you're teaching load will be reduced and you'll have more time for research.
PN1100
Yes?‑‑‑Not always.
PN1101
Within a year there's also peaks and troughs in terms of the amount of time I'm dedicating to teaching versus research?‑‑‑Yes, and the research shows that pretty starkly, that if you look at teaching weeks versus non‑teaching weeks in a year there's fairly consistent research showing that those figures jump - sorry, those figures jump around fairly obviously, that the teaching and teaching related falls in the non‑teaching weeks.
PN1102
Yes, and traditionally teaching is done in two semesters, generally 12, 13 weeks?‑‑‑Traditionally, yes.
PN1103
Yes, and indeed even in the NTEU's own material we see that the average number of teaching weeks is 26 weeks?‑‑‑Yes, that's right.
PN1104
So we have 26 weeks that are non‑teaching weeks and you'd expect there to be more research being performed during that time?‑‑‑Yes.
PN1105
And indeed we do see that there's more research being performed during that time?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1106
In terms of - well, we've touched on this, but do you accept that other than the specific contact hours for teaching, tutorials and attendance at required meetings, that academic staff largely self‑managed when they work?‑‑‑Again, I don't want to quibble, but if you're involved in a collaborative research project that involves, for example, a chief investigator at another university, that chief investigator will say, "There's a meeting in Brisbane next Tuesday, Wednesday, Thursday, to work on these important theoretical problems." Now, I suppose in theory you can say, "Well, I'm not going to that", but in fact there will be a whole range of things where people work - for example, you mentioned teaching and research academics. They are now only 50 per cent of the non‑casual academics. About 28 per cent are research only and most of them work in research teams headed by a chief investigator, so much of their work, when it is to be performed, how it is to be performed, is not self‑managed. So I think it varies. So as you say, there will be scheduled meeting, there will be classes. If one is involved in a service obligation then there will be specific times at which one has to attend particular events or functions. Now, if what you're saying is you get to choose what those service obligations are, then indirectly, I suppose, you get to choose when those things are on. So again, it's just a question of not wanting to over-egg the position, but certainly outside of classes and other things there is a considerable amount of flexibility about when and how that work is performed to the benefit of the employer, mostly, and the employee.
PN1107
Also in terms of the work location?‑‑‑Yes.
PN1108
In terms of whether I prepare my lecture sitting in the Hargrave cafeteria or the library or at home or on the plane, in terms of where I do work, preparatory work, or indeed research that's not perhaps laboratory based and equipment dependent, the work location is a matter that I effectively self manage?‑‑‑I wouldn't go that far. I think there are increasing expectations that academics will be - I mean, it probably varies from academic unit to academic unit, but there are - over the last decade or so there's been increasing pressures, both formal and informal, upon academic staff to be in their office and available at more times than just the times of their classes. So the expectations that people will be in the office for a fair slab of the week are increasing, but again - and of course there are some academics who work at home - certainly with the introduction of open‑plan offices there are some academics who work at home, against their better judgment, because it's the only place where they can actually have some peace and quiet to read.
PN1109
A bit like law firms?‑‑‑Yes, a bit like law firms - yes, or being a trade union official. If you want to do some serious work you have to go home .
PN1110
But as a general proposition you'd accept that the staff member isn't directed to sit in their office from 9 till 5?‑‑‑Absolutely. No, you've got no argument with me on that.
*** KEN MCALPINE XXN MR PILL
PN1111
Outside of their specific teaching allocation, those tutorials, the required admin attendances, they also largely self manage their work activities?‑‑‑Well, yes, they self manage them, but, for example, they self manage them within a framework which might, for example, have - there might be an expectation that emails from students will be responded to within 24 hours. So that means that every 12 hours or so, Saturday, Sunday, they have to go home, they have to check their email, see what the students have done. Somebody writes in and says, "I don't understand the difference between law and equity. Can you explain that to me?" So, yes, they self manage it, but they self manage it within constraints. So, yes, they self - it's not like somebody says, "You have to answer that email about law and equity." They self manage in the sense that they respond to the demands of work in the way that they see best and meet the policies of their employer.
PN1112
Yes, thank you. In terms of teaching - and you've referred to your statement, and I think you were referring to your third statement where you touch on some of these issues, and I don't think I need to take you to it, but you've given evidence that in preparing a lecture that the academic staff member within a curriculum determines and prepares the content. Do you accept that?‑‑‑Yes.
PN1113
Indeed, teaching and research staff will generally also be the primary person or people who develop the curriculum?‑‑‑Yes. That's overwhelmingly the case. There are very few exceptions, but yes.
PN1114
Yes, and indeed that's perhaps self‑evident, because I'm an academic with expertise in that discipline and so I shape and determine the curriculum for the students?‑‑‑Yes.
PN1115
I also prepare the reading guides?‑‑‑Yes.
PN1116
And the relevant assessment that will be undertaken to reflect the curriculum and what's being sought to be achieved by delivery of that curriculum?‑‑‑I'd have to - you do determine the assessment, but you determine the assessment often within policy constraints that means that you can't - an academic can't decide on a form of assessment that they think is academically best. So a lot of assessment - over the last 25 years a lot of assessment has been made subject to essentially resource constraints, which are perfectly understandable. For example, I did a graduate diploma in public sector management in 1987 and the assessment was a paper followed by a half-hour interview with a professor and the professor asked questions about the content of the paper. I mentioned this to some people at the same university, University of South Australia, a few years ago, and they said, "Well, they banned all that because we're short of resources, so we basically said it has to be a multiple choice exam and it has to be marked by a computer" - in some subjects. You know, so they don't get to - I would say they get to determine, for example, what the essay questions are. If there are essay questions - if it's an essay questions assessment undoubtedly the academic will get to decide what that is, but whether it's essay, whether it's short answer, whether it's exam or whether it's computerised multiple choice is now often taken out of the hands of the academic themselves.
*** KEN MCALPINE XXN MR PILL
PN1117
So subject to those sorts of resource considerations, they determine the assessment, whether it's going to be essay question or five essay questions or indeed whether it might be an oral assessment within a tute?‑‑‑They don't get to - they generally don't get - most academics no longer get to determine which of those it will be. They will get to determine what the questions are once that question has been decided.
PN1118
So who do you say determines it then?‑‑‑Often managerial policies within a particular faculty, for example, will say a first year humanities subject consists of a tutorial paper of 1500 words and an essay of 3000 words, and that's the assessment - I mean, I'm not being excessively critical of this, I'm just saying this is not an uncommon practice, that the form of assessment is in effect prescribed for a whole class of subjects.
PN1119
VICE PRESIDENT CATANZARITI: Mr Pill, that might be time for a short adjournment.
MR PILL: As the Commission pleases.
<THE WITNESS WITHDREW [11.17 AM]
SHORT ADJOURNMENT [11.17 AM]
RESUMED [11.38 AM]
<KEN MCALPINE, RECALLED [11.38 AM]
CROSS-EXAMINATION BY MR PILL, CONTINUING [11.38 AM]
PN1121
MR PILL: Mr McAlpine, before the break I was asking you about teaching research and service, can I just ask you some questions about service, and I use that to basically cover the activities that aren't the teaching and research activities. Do you accept that the concept of service includes, and I just want to list some matters for you, perhaps you can indicate whether you accept that they are part of that service, constitute part of the work activities of an academic. It includes internal and external professional work?‑‑‑Yes.
PN1122
It includes participation on editorial boards or advisory boards related to my discipline area?‑‑‑Yes.
PN1123
Mentoring of other staff?‑‑‑Well, again, with the - senior academics are expected to do that, sometimes that counts as administration, sometimes it counts as service but at some places, yes, that's certainly considered part of service.
*** KEN MCALPINE XXN MR PILL
PN1124
Media and profile raising activities?‑‑‑Certainly.
PN1125
Organising conferences?‑‑‑Yes.
PN1126
Consultancies?‑‑‑Yes. Yes, some consultancies will count as part of a research effort, depending on what the outcome is, but some consultancies will just be in the nature of service, yes.
PN1127
Administration, as you mentioned, in this concept of service and administration. Things like attending a graduation ceremony?‑‑‑Yes. Yes, I think some universities count that as part of teaching but I'm not going to quibble, yes, it's part of service. Participation in the university community, yes.
PN1128
Professional practice contributions?‑‑‑Yes. To the extent they're not - yes, you mean professional - yes, certainly. Sorry, I get what you mean, yes.
PN1129
Attendance at conferences?‑‑‑Well, again, that can be part of your research effort, it could be part of your teaching related duties or it can be part of staff development, in general. So, again, it depends what sort of conference and how you slice it up but I wouldn't have generally called attendance at a conference a part of service, no. I don't think much turns on that.
PN1130
Involvement with government and community bodies?‑‑‑Yes. Yes. Yes, that's fair. Again, depending on exactly what they were but, yes.
PN1131
Do you accept that that list that I've gone through, they're all part of the academic role?‑‑‑Well, they are. Yes, they are, typically, part of the role of many academics, yes.
PN1132
They constitute necessary work as part of the academic role?‑‑‑Depending on the academic role - the academic role considered generically and in the abstract, yes. They're not necessarily - an academic, for example, who was doing all of those things would be unlikely to get that included in their workload allocation because they simply wouldn't have enough in whatever the workload allocation model was to do all those things within - for example, if the workload model said there was a notional or actual 190 hours a year for service, then some people might be doing all of those things but they wouldn't necessarily be able to include all of those things in the workload model. But if you're talking about, are those the sorts of things that academics do in their role, yes, certainly.
*** KEN MCALPINE XXN MR PILL
PN1133
It's not the case when you sit down and when you talk about allocated service that the university would say to the staff member, "You have to do all of these things this year." That's not how it works, is it? The academic indicates what service activities they're intending to pursue and what professional contributions and practice contributions they're intending to make?‑‑‑Yes. Yes, but their supervisor may decide - well, I suppose to be fair, yes. There's another question about whether all of those things will be listed as part of their required work or performance outputs. The supervisor might decide which ones of those thing were part of their required output. So, for example, if there's a 10 per cent allocation for service, let's say, the supervisor might say, "Well, you're on that editorial board and you're organising that conference but that goes way outside what we require you to do for service so what we're going to list is this and this and this as your agreed service outputs." I'm saying yes to your question but I'm just qualifying it slightly to give a full picture.
PN1134
I heard "yes". And you accept that some of these things arise during the course of the year. As a theoretical professor I could be approached and asked by an editorial board whether I wanted to join the editorial board?‑‑‑Yes, certainly.
PN1135
That may not even be known to the university at that stage?‑‑‑That's right.
PN1136
That could, indeed, happen without the university's knowledge at all?‑‑‑Absolutely.
PN1137
Yes. But that sort of - - -?‑‑‑It does. Not just "could" that sort of thing happens all the time.
PN1138
So you'd accept that the academic does have a significant degree of control over many of those service activities?‑‑‑Both what they are and the way they're done, yes.
PN1139
You accept that, as a consequence of my decision as an academic, as to what they are and how they're done that the amount of time I take, as an academic, undertaking those activities could vary widely?‑‑‑Absolutely. Absolutely. I think there's evidence, to that effect, from other witnesses but, yes, that's certainly true. Many academics perform service far in excess of what is required of them by their employer, it's in the nature of the work.
PN1140
Could I just ask you specifically about, and they're variously titled, but Health Faculties, Faculty of Medicine, Medicine Health Sciences, particularly those who are medical academics, you'd agree with me that many of those academics also have roles with hospitals and health care networks?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1141
They're held concurrently and often in conjunction with their academic employment at the university?‑‑‑Yes, it's a minefield.
PN1142
So I might be employed by the University of Melbourne but I've actually also got a role with Northern Health?‑‑‑Yes.
PN1143
I'm doing research and teaching out at Northern Health and I'm also receiving a salary from Northern Health for my clinical duties that I perform out there?‑‑‑Yes, certainly.
PN1144
I might also be in private practice as well?‑‑‑Yes. Yes, yes, yes.
PN1145
All of those matters, my clinical role and, to a lesser extent, my private practice, but certainly my clinical role and the research I'm doing at the hospital, they all contribute to my standing as an academic?‑‑‑Absolutely, yes. And, in fact, they may be required as part of your contract of employment.
PN1146
Some of those appointments facilitate collaboration across academics employed by multiple universities?‑‑‑Absolutely, yes.
PN1147
Moving away from the medical area, you'd also accept that a number of academics, particularly those that are more senior, would also be involved in consultancies?‑‑‑Yes.
PN1148
So, for example, in the fields of engineering and nano technology, a large organisation may approach me to assist them with some research, in relation to a particular activity that they are pursuing?‑‑‑Yes.
PN1149
That might be done under the umbrella of the university, do you accept that?‑‑‑Sorry?
PN1150
So BHP approached me to do some analysis of some engineering feature, they engaged the university, I do the work, the fees come in to the university and generally, as the academic, I will receive the use of those fees for other activities and purposes?‑‑‑That's a common practice, yes.
PN1151
That can include - - -?‑‑‑In an alternative, sometimes, of course, with the approval of the university, the academic acts as a consultant directly for that company and gets paid by that company. So both models operate, yes.
*** KEN MCALPINE XXN MR PILL
PN1152
So essentially a fee for service basis?‑‑‑Yes, although, again, to be fair, and I know, for example, from the workplace that - the dear, departed workplace research centre at Sydney University, although it was a consultancy-based outfit, usually there's an element of academic oversight about what you can be a consultant about, particularly if it's going to be counted within your university employment. If the tobacco industry asked you to do research on why tobacco doesn't cause lung cancer, it probably wouldn't matter how much they offered it'd be unlikely you'd be allowed to do that in your capacity as an academic.
PN1153
Yes. So like an approval step?‑‑‑Yes, that's right, based on academic grounds, yes.
PN1154
That work that I'm doing for BHP, that might assist in my academic standing?‑‑‑Absolutely.
PN1155
It might help me get promotion?‑‑‑Yes.
PN1156
It might be something that I can translate into a research paper?‑‑‑Yes.
PN1157
It's also the case, isn't it, that in relation to research that I undertake for the university, as an academic, I might - sorry, I withdraw that. In relation to work I do as an academic, where research produces a particular outcome that that outcome may be commercialised?‑‑‑Yes.
PN1158
As an academic staff member I may receive some benefits as part of that commercialisation?‑‑‑Yes.
PN1159
That's not uncommon, is it, for academics to enter into, as part of their employment, arrangements whereby they receive benefits that come from commercialisation of their research?‑‑‑Yes, it's not uncommon.
*** KEN MCALPINE XXN MR PILL
PN1160
Now, in relation to research generally, and perhaps I'll put this on the basis of teaching and research academics for ease of - to save you some of your qualifications, you accept that the area in which they research, provided it's within the broad keeping of the strategic direction of the university, is a matter for the academic?‑‑‑I gave some qualifications earlier, but yes and in particular now, as just to repeat what I said before, for example, the requirement to bring in grant income of a certain amount, for example, based upon one's academic classification constrains that. But nobody is told what they have to research. There's always a very important element of choice that the academic has over what it is they're going to research.
PN1161
They determine the research question that they will answer, or seek to answer?‑‑‑Yes, if they're the chief investigator, yes.
PN1162
They'll determine the scope of that research and the methodology?‑‑‑Yes. Again, obviously, subject to resource constraints, but we're all faced with those. Yes.
PN1163
The methodology could be some sort of longitudinal study, it could be a survey, it could be interview based, it could be lab based, all of those things are within my bailiwick as the academic?‑‑‑Yes.
PN1164
The research question that I've determined and the scope and the methodology may see that research go for significant variable periods of time. Do you accept that? It could be months, it could be a number of years?‑‑‑Yes.
PN1165
That may be particularly so, for example, in the medical area where there's attempts to find cures for particular previously incurable diseases, they may take, I'd suggest, many, many years?‑‑‑Yes, and there are a few projects - I'm not an expert on this but I certainly know there are a few projects that are funded for quite long periods of time but, yes, it's nearly always determined by the money and the money is dolled out for specific periods, that's true.
PN1166
Through that process of research, that research will often evolve and develop?‑‑‑Yes.
PN1167
And go off in new directions?‑‑‑Yes.
PN1168
The one research project may ultimately translate into multiple research papers along that journey?‑‑‑Yes.
PN1169
It's really for me, as the academic staff member, to determine what I'll do with that research, as it develops. By that I mean they'll determine when and whether they translate that research into, for example, a research publication that they submit to the Journal of Medicine?‑‑‑Well, yes, they will but, for example, they will be subject to research output requirements - commonly subject to research output requirements, as an employee of the university. So to some extent they'll be required, within certain timeframes, to publish certain things. So yes, from the point of view of deciding, as an academic, "Am I going to publish this?" yes, they get to decide that, but their decision about that might well have consequences in terms of their performance standards and whether they're considered to be meeting their required research outputs.
*** KEN MCALPINE XXN MR PILL
PN1170
We'll come to the performance standards but, by way of example, you've included in your attachments for the University of Melbourne, they have quite detailed performance standards and they typically require, say, level B to have five papers over five years, that's the standard that you're talking about?‑‑‑Yes. Five papers in highly reputable journals.
PN1171
Yes. I think we've touched on this but researchers often work collaboratively with other researchers and that's really a choice that they make as part of their academic judgement?‑‑‑Yes. If they're sufficiently senior, yes.
PN1172
You accept that equally competent academics in a discipline may well take different approaches and paths to the same research question?‑‑‑Yes.
PN1173
They might, ultimately, end up with the same outcome, but the path that they've taken and the consequential amount of time that the competent academic has taken would vary quite significantly?‑‑‑Yes. If you say they're getting to the same point then that outcome is going to - the outcome they're looking for is going to largely dictate what the methodology is, because there's a close relationship between methodology and output. But your more general point, which is that they could - I'm not trying to put words in your mouth, but that different academics could take different paths and take different amounts of time to reach the same research output is certainly true.
PN1174
That's, in part, a function of the nature of research. Do you accept that research, as a general proposition, involves the development of new knowledge and new information, or the development of new applications for known knowledge and information?‑‑‑Yes. As a definition of research, as opposed to research work, yes.
PN1175
It's a process of discovery?‑‑‑Yes, that's what research is. So there are a lot of people who work in research who don't necessarily do research. But, yes, as a definition of what research is, that's pretty much on the money.
PN1176
The particular research, the scope, methodology within resource constraints is not something that the university dictates or directs?‑‑‑I'm sorry, could you just repeat that question?
PN1177
The research that they're undertaking, the question, the scope, the methodology that the academic has determined is not something that the university dictates or directs?‑‑‑No. It may well be something that is dictated to the academic by the granting agency but, no, they're not directed by their employer.
*** KEN MCALPINE XXN MR PILL
PN1178
So you've mentioned a number of times that one of the constraints, one of the rigidities, is that the universities seek that they generate a certain amount of research income?‑‑‑Yes.
PN1179
What we're generally referring to there is grants from the two main public funding bodies, the Australian Research Council, the ARC, and the National Health and Medical Research Council, or the NH&MRC, is that what you're referring to?‑‑‑Those are the big two, yes.
PN1180
Each of those organisations offer a number of different types of grants?‑‑‑Yes.
PN1181
But if I simplify it, they include discovery grants and what are commonly called linkage grants?‑‑‑Yes. Yes, I think that's - in terms of grants to support specific research projects, yes. They also offer, as a side to that, the post-graduate awards to students that are related to those grants as well so, yes.
PN1182
They also offer a range of fellowships, to be fair to you?‑‑‑Yes, which support individual academics, yes.
PN1183
I'll come back to fellowships. In terms of the research grants, it's a process, isn't it, of an academic developing a grant proposal, identifying the research question that they are going to pursue, some indication of the methodology and they submit that to the relevant council?‑‑‑Yes, through the university, yes.
PN1184
Through the university's research office?‑‑‑Yes.
PN1185
It goes off and it's assessed by a panel of academics within the ARC or NH&MRC?‑‑‑Well, it's assessed by a panel of academics that come from other universities. One of the constant complaints from academics is how much time they spend on these panels assessing other people's applications. But, yes, in terms of process, you're entirely right.
PN1186
So in terms of that process it's still the academic that's determining the research question, the scope of the research they're proposing, the research methodology and, essentially, who's going to undertake that research?‑‑‑Yes.
PN1187
If they're successful their obligation is then to complete that research in accordance with the approved research grant application that they have submitted?‑‑‑That's right, yes.
*** KEN MCALPINE XXN MR PILL
PN1188
That ARC/NH&MRC research grant process, that covers a majority of the academic research that's being performed within universities?‑‑‑I'd say it probably covers a majority of the academic research. Remember there's still a lot of academic research that is not grant funded, but it certainly covers the overwhelming majority of grant funded academic research, you're absolutely right. To be fair to your point, it probably is the majority of the research that's actually being done. If you're measuring it by hours of work, I suspect that is certainly true.
PN1189
So in that process that we've gone through there really isn't a limit on - the fact that it has to be externally grant funded and has to go through an ARC or NH&MRC process really doesn't impose any rigidity on what I'm going to research or how I'm going to do it?‑‑‑It doesn't impose any rigidity in relation to that research, no, that's right. It does impose limitations on what research you're going to undertake.
PN1190
Because you then have to research in accordance with the grant application?‑‑‑No, the research that you get grants for is a subset of all your research. So if I were an academic who was a senior medical academic I, in fact, might want to write a critique of education in surgery. I might want to write a book critiquing the education of surgeons, based on my 25 years of experience, but that's not going to bring in a grant. I'm probably not going to get a grant for that and my research - my performance requirements require that I get a certain amount of income. So all I'm saying is working on the grant is not constrained, people are autonomous about executing the work on the grant. That's not quite the same thing as saying they're autonomous about what research they do, if they're being told they have to get a certain amount of grant income. It's just that distinction.
PN1191
DEPUTY PRESIDENT KOVACIC: Mr Pill, can I just ask a question? Mr McAlpine, do the grants have a common duration or do they vary, in terms of the length? What's the range if they do vary?‑‑‑I think I read recently that the most common grants are three years or five years. That if you're looking at grant applications three years or five years is the most common thing. I certainly know of academics who are members of the NTU who've said, "We've got a three year grant and then the NH&MRC is going to review progress and see whether they're going to fund it for another three years, so we don't have to reapply but we have to produce certain results after three years and if they don't like those, it's curtains, but if they do it's six years." But I don't think I'd be far off if I said most grants were three years or five years, I should say, especially in those science and medical areas which, in money terms, are the big money areas.
PN1192
MR PILL: As an academic, if I'm successful in getting a grant, it obviously benefits me as an academic, in terms of my standing?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1193
It also enables me access to those external grant research funds that have come in to perform the research?‑‑‑Yes.
PN1194
One of the uses that I may make of those funds is I can effectively buy out teaching? Are you familiar with that concept?‑‑‑Absolutely, yes. The rules about that vary and the extent to which you can do it changes but, as a general proposition, you're right, if you have a teaching allocation of 16 hours a week and you win a great big grant, then you are usually able to reduce teaching load and sometimes some of the money from the grant is, effectively, used to pay, for example, casual staff to teach certain classes that you would otherwise be teaching and that's called buying out your teaching, yes.
PN1195
In addition to those grant applications these bodies also offer fellowships?‑‑‑Yes.
PN1196
So as an academic I can decide to pursue a particular fellowship, an Australian fellowship, to use an example, to assist the Bench, there's one called a DECRA, a Discovery of Early Career Research Academic fellowship. Do you accept this, that those fellowships generally provide funding, as a fellow, for, generally, a three year period, occasionally a five year period?‑‑‑Yes.
PN1197
The money comes with some strings, I generally have limits on how much teaching I can do and I have to, essentially, pursue research, as part of that fellowship?‑‑‑Yes, that's a fair description.
PN1198
But, unlike the specific grant applications, the scope of the particular research that I pursue is essentially up to me, within the context of that fellowship?‑‑‑Yes.
PN1199
Having received a grant or a fellowship would you also accept this, that if I moved to another university it is commonly the case that, whilst it is technically a funding to the university, there will be a transfer of that grant and the money and it goes with me?‑‑‑Yes. It's always immensely satisfying to have one of our members declared redundant and then win an enormous grant two weeks later and turn up at another university, especially gratifying to them. Yes, the grant can follow the academic.
PN1200
So, putting aside your commentary, I'm a year and a half into a particular grant, another university throws some more money at me, I move to that university and the university, my previous employer, will transfer the grant to the new university?‑‑‑Yes, that's right. Let me just say, it's a reprehensible practice in some cases because universities pay very large salaries in order to, in effect, poach the research project. It's a shocking waste of public money, but it's very good for our members.
*** KEN MCALPINE XXN MR PILL
PN1201
Now, you accept that, as a general proposition, academics aspire to be the best researcher and produce the best research that they can?‑‑‑Overwhelmingly. Those who are paid to do research, yes.
PN1202
So I'm putting aside teaching only academics?‑‑‑Yes.
PN1203
Part of that is because they're exercising professional judgement but also because it's their research interest and often their passion?‑‑‑Certainly.
PN1204
You'd accept the proposition that for those sorts of academics, being an academic is a vocation and not just an occupation?‑‑‑It's not just an occupation, no. It's a vocation, yes. I read that in the submissions and I just should make the point that with 40 per cent of non-casual academic staff on short term contracts I'm not sure that those people - I think they aspire to have a vocation but often they've got a one year appointment and then another one year appointment and I'm not sure the extent to which they can actually consider their work to be a vocation when they don't know whether it's going to go on beyond the end of the year. But in a more general sense, outside their employment, your point is proved by the fact that there are plenty of retired academics who just keep on doing their research, even though nobody's paying them. So, yes, I accept your point, a vocation in that sense, yes. A lifelong interest.
PN1205
Indeed, if I'm researching to provide a cure for Dengue Fever, I'm going to do that whether Monash University employs me or I find a house somewhere else or, indeed, I go to Bill Gates, as is the case, and he gives me $20 million to research that?‑‑‑Yes, that's true. That's true.
PN1206
So in that context, the amount of time that I spend pursuing a cure for Dengue Fever is, at least in part, a function of my passion and my interest?‑‑‑And so it should be, yes.
PN1207
It's often said that research includes reflective thought?‑‑‑Yes.
PN1208
I think we heard it in Ms Gale's opening that the next thought about research or discovery might come to me whilst I'm mowing the lawns and there's some evidence that some academics might spend 10 hours or, indeed, two months contemplating before they put pen to paper to write a research publication, do you accept that?‑‑‑Yes, they tell me those sort of stories all the time, yes.
*** KEN MCALPINE XXN MR PILL
PN1209
Through to the Professor of Philosophy who says he works 24 hours a day, 7 days a week, because he's always thinking?‑‑‑Yes.
PN1210
All flippancy aside, the NTEUs position is that that's part of the work of academics, that reflective thought process?‑‑‑Yes, absolutely.
PN1211
And a necessary part of the academic work that they perform?‑‑‑Depending on their discipline and various other things but, as a general proposition, yes.
PN1212
Can I take you to your third statement, which is exhibit I, and paragraph 51(f) to (g)?‑‑‑To which, sorry.
PN1213
Your third statement, it's called Further Supplementary Witness Statement of Ken McAlpine, and it was exhibit I?‑‑‑Sorry, exhibit which?
PN1214
I?‑‑‑So that's my second statement, isn't it?
PN1215
The third one. You may not have marked it, but it's entitled Further Supplementary Witness Statement of Ken McAlpine (July 2016) and the first page is numbered 48, on the bottom right-hand side?‑‑‑I'm sorry, where are you taking me to, sorry?
PN1216
Have you got that statement?‑‑‑I've got the statement, yes.
PN1217
Can I take you to page 51?‑‑‑Page? Sorry, now mine hasn't got numbers. Sorry, which paragraph?
PN1218
It's the fourth page, it's a subparagraph, which is actually paragraph 4(f)?‑‑‑4(f), yes.
PN1219
Just above that you have the remainder of paragraph (e)?‑‑‑Yes.
PN1220
You make the point in the last sentence there:
PN1221
Most academics (indistinct) will spend as little time on administrative procedures as they can, consistent with the requirements of their employer.
PN1222
Do you see that?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1223
You'd accept that, as a general proposition, academics are resistant to managerialism?‑‑‑Yes.
PN1224
They don't like filling in forms or completing leave applications and all those sorts of things?‑‑‑I think they probably like filling in leave applications but your general proposition is true.
PN1225
You'd accept that they'd be fiercely resistant to being required to monitor and record their time?‑‑‑I think it would depend what the purpose of that was, but as a - there would be certain purposes for which they would be happy to record their time, but the idea that they were required to record their time - the time they spent working on some sort of ongoing, regular monitored basis would be something that they, like we, the union, would consider to be absurd.
PN1226
And therefore probably fiercely resisted?‑‑‑Yes.
PN1227
Then at (f) you say:
PN1228
In relation to research there are important aspects in which academics retain considerable autonomy.
PN1229
And we've covered most of this ground?‑‑‑Yes.
PN1230
And you make a point, towards the end of that paragraph:
PN1231
To the extent there's a constraint in these matters, except in relation to research misconduct, it is more likely to be imposed by their own colleagues working as part of a research team or the academic discipline of peers nationally or internationally, rather than the management of their own institution.
PN1232
Do you see that?‑‑‑Yes.
PN1233
So do I take it from that that whether I'm pursuing a particular element of the research or the time that I'm taking or when I do it might be influenced by those matters, is that how I understand your evidence?‑‑‑Yes, that's right. I mean - - -
*** KEN MCALPINE XXN MR PILL
PN1234
They're not matters that are controlled or required by the university?‑‑‑They're not directly controlled or required by the university but, for example, I do say in that sentence:
PN1235
To the extent that these are constrained, it's more likely to have been imposed by their own colleagues or peers, nationally or internationally.
PN1236
Now, if you didn't accept those constraints you might well end up in trouble with the management. You know, if somebody says, "I think we need to re-research whether tobacco causes lung cancer and somebody's proposing to give me $500,000 to do that." One's peers, nationally and internationally, would say, "That's not legitimate research. That is an old issue. That has been established beyond doubt." Then if you decided to ignore that, ignore your peers or ignore your colleagues in your research team then that might well end up that you would end up in trouble with the management. But in the sense I mean it, the direct constraint, like, "That's a very bad idea, we shouldn't research that", would, in the first instance, come from one peers. The head of school - your supposed supervisor probably wouldn't even know about the controversy or may not need to know about the controversy.
PN1237
Thank you. Then at (g) you say:
PN1238
Despite the autonomy there are important respects in which the autonomy of much of research work of academics is very limited.
PN1239
We've touched on some of this already?‑‑‑Yes.
PN1240
Your first point there is the requirements that research bring in research income and we've already talked about the ARC and NH&MRC and the assessment that's undertaken by academics as part of that process. Now, it's not the case, is it, that all research has to bring in research income?‑‑‑No. It's more likely that one's research work has to bring in a certain amount of research income.
PN1241
Having done that or, indeed, irrespective of that, I can still, as an academic, be doing research that isn't bringing in research income?‑‑‑Yes and, of course, many academics do.
PN1242
Indeed, I might be doing that research and then at a particular point in time I might decide to translate that into an application for an external grant?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1243
In terms of your second dot point, the requirement that academics apply for a certain number of research grants:
PN1244
Applying for such research grants takes up a considerable amount of time, in many cases well in excess of 100 hours per year.
PN1245
Now, you've attached a whole folder, which is exhibit F, of these performance standards?‑‑‑Yes.
PN1246
I've been through them. You'd accept that in the majority of those they don't actually identify a requirement to apply for a particular number of research grants?‑‑‑In a majority, yes, I think that's true. Yes, some places count applying for research grants as an output, some places simply say you have to get a certain number or amount of research grants and I think, yes, the arrangements and the way in which those things are expressed vary between different institutions. Certainly I wouldn't suggest that a majority of universities impose an explicit performance requirement that a certain number of research grants are applied for. I think that's - I wouldn't dispute that.
PN1247
In terms of the next dot point:
PN1248
Requirements that an employee's academic research comply with the strategic direction of the university or academic management unit.
*** KEN MCALPINE XXN MR PILL
PN1249
Do you accept, as a general proposition, that that imposes, at best, a very loose restriction? The strategic direction of the university is generally expressed in very broad terms?‑‑‑No, the academic management unit. I agree with you about the university, the way universities express their strategic direction is usually ethereal, to say the least. But academic management unit, so, for example, in the controversy I discussed about Melbourne University it was suggested that the research had to comply with the strategic direction of the university's academic management unit and a senior academic said, "Well, we've got somebody, in the Centre for the Study of Higher Education, we've got somebody who wants to study the history of the 18th century German professoriate." And they said, "That's just not consistent with our priorities." Now, I'm not saying that's a good thing or a bad thing, I'm just saying that was what was said. So I think the academic management unit's strategic direction might be, for example, in pharmacy, to pitch for more grants from private pharmaceutical companies as a way of building the department's research profile. So they might say, "What we're really interested in is we need people pursuing research questions that are going to improve the innovation, integration between our department and the pharmaceutical companies." Again, I'm not saying that's a good or bad thing, I'm just saying I agree with you at the university level. I think at the level of the academic management unit they are becoming more entrepreneurial, in the sense that they'll say, "No, as an academic department this is the team game, this is what we're trying to do over the next five years. What you're proposing to research really doesn't fit into that frame. Now, having said that, I wouldn't want to overstate that. That happens in some places at some times I get reports of that, of people being told, "This is not good as research. It might be okay academically but it's not our strategic direction." I think it's much the minority case so I don't want to overstate it, but it does happen.
PN1250
COMMISSIONER JOHNS: Sorry, Mr McAlpine, so how high do you put it, in terms of your use of the word there "requirement"? Does the academic management unit just say, "Look, we don't think that research is consistent with our strategic direction" and the academic still gets to go and do what they like? Are they trying to persuade the academic to fall within the strategic direction or are they actually told, "You can't do that, you must do this"?‑‑‑I couldn't cite examples of people saying - being told, "You can't do that" I think that's clear.
PN1251
So you wouldn't use the word "requirement" would you?‑‑‑But if I were to say, "You can't count that as part of your research outputs to meet your performance expectations. You can study the German professoriate for as long as you like, but the things we want to include in your performance expectations are things that comply with the department's strategic goals." So it's a requirement in that sense. No one gets told, "You can't study the German professoriate", let's be absolutely clear about that. I've never seen that. What I have talked to academics about is them saying, "We need to specify what your expected research outputs are over the next 12 months. If you want to do that, we don't think we can include that. We think your performance outputs need to fall within this strategic framework that we've established." So I wouldn't put it any higher than that.
PN1252
DEPUTY PRESIDENT KOVACIC: Mr McAlpine, just in terms of how those performance expectations are set, is that part of an annual conversation between the academic and his or her manager/supervisor and is that notionally a two-way conversation?‑‑‑There is nearly always - as you have described it there is some sort of two-way conversation and there is some sort of give and take, but, and I don't want to overstate it, most - sorry, many and an increasing number of universities have overarching performance expectations which might say, "You can have this conversation, but the performance expectation has to be this number of publications, for example, over this period. If you're at level B then we expect people at level B will have this number of publications." So it is a conversation but it's constrained by, say, faculty-wide, it might be the humanities or the sciences, or I think it's much more commonly faculty-wide research output expectations.
*** KEN MCALPINE XXN MR PILL
PN1253
So in terms of that research output expectation, as you describe it, let's say it's five over a period of 12 months, how's that figure of five determined, to the best of your knowledge?‑‑‑How is it determined? Some places - I'm sure I don't know all the answers to that question, so let me just - I don't want to say something that I don't know about, but it is - some universities have set themselves, at a central goal, a 20 per cent increase over the next five years in research outputs. There's a thing called the Higher Education Research Data Collection, HERDC, and there's a whole big lump of money that is paid to universities, in proportion to their research grants that they receive and their publications and the number of PhD students they have. So there's this big lump of money, which I think is $800 million a year, and don't hold me to the figures. Melbourne University gets $100 million of that and Federation University gets maybe $7 million of that. That's based upon their research outputs. So a place like, again don't hold me to the particular example, but a place that is further down that league table might say, "We want to increase our proportion of that and to do that we have to increase our research outputs by 25 per cent over the next five years", or whatever it is. So they will send down - a decision is made, I don't want to be tendentious, a decision is made that faculties need to improve their research output by that amount, so that finds its way down into these research expectations. I think that's the most common driving factor in this, that universities say to us that, "We, this university, have to improve our research outputs, both for its own sake", which is fair enough, "and for the sake of our share of that money." So I don't think - and just to be fair, I don't think that, for example, workload or capacity to do these things is completely out of mind either. I think they might look at that and say, "That's five publications in five years in these journals, at level B, is a fair thing." I'm not suggesting that they are entirely - that they just pull the numbers out and say, "Do it or else." So I think it's a mix of what they think is reasonable and doable and what they need to get their share of that money and improve the university - I should say the other thing, improve the university's rankings in those international and national ranking system, which more and more, at least the universities believe, are used by international students to decide which university they want to come to. So if Monash drops from number 52 in the world to number 65 in the world there's a hue and cry and we have to improve our research performance and therefore these - as I said, I'm sure there are other considerations as well, I don't sit in the meeting of senior management. But those are the ones that are apparent and that they've said, across the table, to our representatives at universities.
*** KEN MCALPINE XXN MR PILL
PN1254
Going back to those performance expectations and the discussion that occurs between the academic and his or her manager/supervisor, whatever the terminology might be, to what extent is there weight given in those discussions if an academic is working on a large project which has potential great significance to that, in terms of give and take around what those performance expectations might be over the period? Is that something that commonly occurs?‑‑‑I think it would be churlish to say that that wasn't part of the discussion. Although I would point out, if you're working on a really big grant project in medicine or the sciences you're probably going to meet your research outputs, in terms of publications or grant income or other things, you're probably, almost by getting the grant, you're likely to meet them. So it's not likely going to have to be adjusted down because you're working on a big grant, it may well be that they're adjusted up because you're working on a big grant. I've looked at some people's CVs, in preparing the material for this case, and you see, here's a research grant and there's 15 papers that come out of a big research grant. So, usually, if you get a big research grant you're - - -
PN1255
Home and hosed?‑‑‑Yes, you're home and hosed, in terms of those research expectations.
PN1256
Thanks, Mr Pill.
PN1257
MR PILL: Thank you. So picking up on a couple of those comments, do you also accept that where they exist the what you call overarching performance expectations could also take into account the international expectations and standards in that particular discipline?‑‑‑Yes. Yes, that's fair. Just to be - yes, I think it is worth saying that, for example, in medicine a grant can easily generate 10 papers whereas in a different discipline it may not generate the same thing. So, yes, you're right. The international standards, yes, that's a good point, Mr Pill.
PN1258
Academics, particularly more senior and particularly those that are engaged in research will often move from country to country?‑‑‑Yes.
PN1259
And certainly from institution to institution. In terms of the research matrix that you refer to, which is your next point:
PN1260
Requirements hat the research outputs comply with certain matrix, such as where they're published and impact they have.
PN1261
?‑‑‑Yes.
PN1262
That's essentially a use of recognised journals, that are recognised internationally, as being of particular prestige and a particular impact, in terms of their citations?‑‑‑Yes.
PN1263
If I publish in the Journal of Science, as opposed, with respect, if I publish in an industry journal here in Australia, that I might have even kicked some money into publish, it is quite a different standing and has quite a different impact?‑‑‑Absolutely and it's a very divisive issue amongst academics, depending on what discipline you're in. People think that's entirely appropriate or they think it's a fix, in favour of the science but, in our view, it's quite legitimate.
*** KEN MCALPINE XXN MR PILL
PN1264
It's not the case, is it, that there's only one or two journals, there's generally a list of recognised journals, there might be 15 or 20 journals that are A or A-star, as they're called, through to B, C, D level journals that have different impacts?‑‑‑Yes. I think there were four million articles published in 2011, in microbiology, so, yes, there's a big ranking of journals.
PN1265
Similarly, when I publish a book there's an expectation that I will publish with a reputable publisher, University Press, those sorts of organisations?‑‑‑Yes.
PN1266
So when you refer to matrix and where they're going to be published and impact, that's essentially what you're referring to?‑‑‑Yes. There are quality - give or take an argument here or there, they're quality restrictions. You have to meet certain standards and those have probably become more rigorous over the last - as it's become easier and easier to publish in the ever growing number of journals that have proliferated, partly because of these performance expectations.
PN1267
Again, that list of accredited journals or the range of journals, that doesn't determine - in my research it doesn't determine what I'm going to do or how I'm going to research it? These are all under the umbrella, Mr McAlpine, of being, in your statement, things that contributed to the autonomy of much research being very limited?‑‑‑Yes.
PN1268
I put it to you that what we've just described about the research matrix really is a very light touch limitation, if any at all?‑‑‑No. No. For example, within the Humanities I know Professor Greg McCarthy, who I think has now got a very senior position in a Chinese - I think Chinese university. He struggled at the University of Adelaide because his areas of research, which related to Australian Film and Media Studies, there simply were no - he was a widely respected academic but his research field, for two or three years, was seriously hampered by the fact that there simply aren't any internationally recognised top ranking journals that deal with Australian Film and Media Studies. So I wouldn't want to overstate this as an issue, but it is an issue for some of our members that they simply have to research in particular areas. I think, more particularly, in the Humanities, they have to research in particular areas in order to get published in the, if you like, right journals. So it is a real constraint, it's not just a constraint of saying, "Your research has to be of high quality", it's actually saying, "Your research has to be in these fields because unless you are research in these fields you can't get published in the right journals."
PN1269
But that wouldn't be the university that would be directing the direction of that research, that would be more the particular academic journal's particular focus?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1270
So it's an externality, as opposed to something that's driven by the institution itself?‑‑‑Yes. But, your Honour, the reason, I think for example, the academic I referred to would have been perfectly happy to keep researching in that area but if he did he wasn't meeting his research matrix with his employer, because he wasn't being published in the right field - sorry, he wasn't being published in the right journals. So if you were sitting down and assessing his research outputs, you'd say, "Well, you're writing about indigenous education in the Northern Territory, the only journals you can get published in are these ones and these aren't top-ranking journals." So it's only a minority issue, I'm just saying that it is a something where the employer says, "No, we expect you to be publishing in the most reputable journals", and if you're research field doesn't actually correspond to one of those fields then there are difficulties. To be very fair to Mr Pill's universities, in respect of some areas, like indigenous health or creative arts, they have specific rules about how they measure those things, to take account of those differences, but they don't always get that right.
PN1271
Wouldn't you characterise that as there's arguably a range of variables that exist and would be known to the individual academic, which he or she needs to take into account in deciding the areas of research that they may wish to focus on?‑‑‑Yes. And the person who thinks that studying indigenous education in the Northern Territory is the compelling issue might, nevertheless, think, "But I'm not going to get the research matrix for that, so I'll study in this other field." Now, I'm not criticising that decision I'm just saying it's a limitation on - in general that operates as a good thing, if I come up with some crazy idea that has no real academic merit, then I'm not going to get published in a good journal and therefore it shouldn't count as a research output. But there can be things at the margins, and I certainly know there are lots of arguments about particular sub-disciplines where the academics just say, "Well, there's no top-ranking journals that exist in this discipline yet because it's a new discipline", for example. So it's much easier to stick to the tired old thing of writing about the Labor Party and the Liberal Party and elections, because there's any number of journals there, but if you want to talk about how community organisations organise their politics, there isn't a journal. I should say, I'm not an expert, I just hear these arguments and I hear the arguments when some of these research output performance things are being raised and members say, "Well, that's not fair to our discipline because".
PN1272
DEPUTY PRESIDENT KOVACIC: Mr McAlpine, perhaps I'll close off the point, in your example of the 18th century German professoriate, which you've indicated in response to a question from Johns C as a minority, at its highest, effectively what that means is I can't research in that and there's a range of other things in which I can choose to research?‑‑‑Yes.
PN1273
MR PILL: That does not dictate the amount of time that I will then spend pursuing a particular research question that I've chosen to pursue?‑‑‑You're quite right.
*** KEN MCALPINE XXN MR PILL
PN1274
Then can I take you to your concluding paragraph:
PN1275
These restrictions and requirements have at least two consequences, firstly, they direct the employee into research areas that may not correspond with what the employee considers to be the most academically important research pursuits.
PN1276
I think we've well and truly covered that.
PN1277
Secondly, they can lead to research undertaken which does not comply with these requirements, not counting in workload models.
PN1278
?‑‑‑Yes.
PN1279
So you'd accept that what you're describing there is a circumstance where the academic is performing research that's not counted or required under the workload model?‑‑‑That's right. Another way of putting it is, if you want it to count you've got to pick from this menu, not that menu. Yes.
PN1280
And if you want to go off on a frolic of your own it's not going to get counted?‑‑‑It's not going to get counted, that's right.
PN1281
Or, indeed, if you're not on a frolic of your own, a significant proportion of academics are pursuing their particular lines of research and will do that, whether the employer requires them or not?‑‑‑Well, yes, some of them will, some of them won't. They'll make a choice, yes. But certainly some of them will.
PN1282
Now, you mentioned research only staff and you cited a figure that 28 per cent of academic staff are research only?‑‑‑Non casual academics.
PN1283
Non casual academic staff, thank you. Is it the case that they're generally advised on a progressive basis what they're required to do to assist in the research?‑‑‑On a progressive basis? Yes, I think that's a fair statement, yes.
PN1284
So this might include a level A research assistant, and I think you give that evidence in your statement, at H?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1285
Does your academic clause, which we'll come to shortly, does it apply to those research only staff as well?‑‑‑Yes.
PN1286
Now, in terms of the academic work that we've covered, do you accept that there is a conceptual difference between the allocated teaching activities and associated activities and what are the self-directed activities, like research?‑‑‑Yes, and that's reflected in our claim.
PN1287
There's an assigned proportion of my work activities, which is generally teaching, assessment, some administration and the remainder is self-directed?‑‑‑Yes. Yes, remembering that much of the teaching is in the same sense self-directed but, yes. Yes.
PN1288
Yes, and I accept that point. In relation to I'll call it the non-teaching work then, the other self-directed activities, that that's time in which the staff members conduct research or other scholarly activity appropriate to their appointment?‑‑‑Sorry, could you just repeat that?
PN1289
Yes. So we're putting to one side that allocated or assigned teaching and the remainder being self-directed is time where the staff members conduct research or other scholarly activity, as appropriate to their appointment?‑‑‑That's one way of putting it, yes.
PN1290
Now, in relation to the teaching contact hours, the tutorials and the like, do you accept that the typical contact hours for a teaching and research academic is in the order of six to 10 hours per week?‑‑‑That's typical.
PN1291
That's typical, in relation to the teaching periods, the six to 10 hours would be within the teaching period?‑‑‑That's typical, yes.
PN1292
I think we've already covered that, on average, that's 26 weeks across the year, so an average of three to four contact hours a week, across the entire year, if I average it across the year?‑‑‑Yes.
PN1293
Obviously there's other work that's undertaken to enable me to stand up in front of the class to do that contact hour, that is obviously in the broad preparation and - - -?‑‑‑Sorry, can I just go back? You said three to four and six to 10, six to 10 would be - - -
*** KEN MCALPINE XXN MR PILL
PN1294
Sorry, three to five, you're right. You can tell I'm obviously not a maths professor?‑‑‑Of course, over the working year, over the working year, it's probably four to six, yes, because there's four weeks' annual leave. But I'm not going to - yes, three to five, four to six.
PN1295
So you're comfortable with six to 10 during the teaching periods?‑‑‑Yes.
PN1296
So 26 weeks?‑‑‑As typical. I'm not sure what the average is but typical, yes.
PN1297
Thank you. And there's preparation and there's obviously some assessment, some of which is done during the teaching, oral assessments and the like, through to examinations or submission of papers?‑‑‑Yes.
PN1298
The activities, over and above those allocated activities, particularly research, self-directed service, whilst there might be notional hours that can be attached to that, the actual hours and the activity themselves are a function of what the academic chooses to pursue and how they choose to pursue it?‑‑‑You mean the actual hours worked?
PN1299
Yes?‑‑‑Well, it's a function of how the academic chooses to pursue it, but there's clearly a minimum. The academic can't choose to pursue it in half an hour, depending on what it is they are required to do. So, yes, and I would add, because I think it's important to point out, even in relation to the teaching duties, the preparation of a lecture, how that's done, whether the academic chooses to spend two hours or five hours is also, in that sense, that's why I was trying to make the point, self-directed and many academics spend - many academics are perfectionists and spend extra hours working on their preparation as well. But, yes, there's certainly, in relation to the research work, how many hours, subject to there being a minimum, a reasonable minimum to do it, is up to the academic.
PN1300
Thank you. In relation to the requirement to attend at the university, there's mention in the NTEU submissions, and it's not in the statement but given your comments earlier, there's reference to other awards, such as those being applicable to teachers, that don't have overtime provisions but:
PN1301
Importantly generally limit attendance to 205 days, an important practical limit on total working time.
PN1302
?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1303
Now, I appreciate there's some distinctions between teachers and academics but do you accept that there is an even lesser attendance requirement in universities, for academic staff to attend the university?‑‑‑To attend the university, yes, to attend to work, no.
PN1304
Similarly, a teacher who's attendance is limited to 205 days, they will well be attending to work outside of those 205 days?‑‑‑For most teachers to a very limited extent but, yes.
PN1305
They mark papers and so forth during the term breaks?‑‑‑Not generally.
PN1306
Know many teachers, Mr McAlpine?‑‑‑I do actually know many teachers and our building is shared with the Australian Education Union and I've had a lot of dealings with them because they've had lots of arguments, particularly in the award modernisation process and elsewhere, over the question of non-attendance time. So it's certainly true that teachers do attend some work, that's not disputed, I'm simply saying I don't think it's the same thing as for academics.
PN1307
Thank you. In terms of the academic annual salaries, do you accept that the industrial history and the award regulation that has applied has included an annual salary, in respect of their role as an academic? That's not in contention?‑‑‑Yes. Yes, subject to the qualifications that were given in the opening, yes, I accept that.
PN1308
With those qualifications, as I understand it, it's an industrial position that's been accepted and supported by the NTEU for approximately 30 years, but the NTEU has withdrawn its consent?‑‑‑When you say "supported for 30 years" I think it's fair to say it's been accepted. I think accepted until 2010. There was a submission made in 2010. Until 2010, in the award stream, we hadn't at all moved to try to regulate hours, remembering that from March 2005 you couldn't really apply to vary awards. So pretty much up until - when you say, "for the last 30 years" remember that the amendments to the Workplace Relations Act, in 2005, essentially closed off any possibility of seeking new provisions in the award, so you can say before 2005 it's true, we didn't seek to do any of those things.
PN1309
When was the first time, in an industrial context, whether it was bargaining or in this award stream, have you raised the prospect of overtime being a relevant or necessary part of award regulation or industrial regulation?‑‑‑This year.
PN1310
Indeed?‑‑‑This year.
*** KEN MCALPINE XXN MR PILL
PN1311
Do you accept that the annual salaries, so the question I asked you, the annual salaries are in respect of their role as an academic and it's the entirety of their role?‑‑‑No, no, you asked me whether they'd been set on that basis, when they'd been set in 1991.
PN1312
I didn't ask you that question. Perhaps I'll ask you a different question. Do you accept that it's not the case that teaching and research academics are paid piece rates, they receive the annual salary, irrespective of what they produce?‑‑‑Yes. Yes, that's fair.
PN1313
Even if, notionally, 40 per cent of their time is allocated to research, irrespective of whether I produce any research output, I receive my salary?‑‑‑That's right.
PN1314
Indeed, if I produce a lot of research I continue to receive that same salary?‑‑‑Yes.
PN1315
That situation that I've just described is an annual salary paid for the performance of all of my work as an academic has been in place since the late 1980s, is that fair?‑‑‑Yes.
PN1316
Now, you mentioned HERDC before, the Higher Education Research Data Collection, and Professor Hughes-Warrington will give some brief evidence about that, and I need to get this right, the mean modal score for research out remains or is commonly accepted as being zero. Now, if I remember Year 9 mathematics, the mode is the middle, so the middle score, as opposed to an average. So what that means is that greater than 50 per cent of the reported academics are not producing any research publication output that's recognised by HERDC?‑‑‑I'll take your word for that. I must admit I haven't looked at that so I can't - - -
PN1317
If you accept that as an assumption, it's certainly not the case, is it, that 50 per cent of the academic staff have stopped receiving their full annual salary?‑‑‑No.
PN1318
Nor is it the case that their entire - if I assume, for the moment, that they had a 38 hour week, that their 38 hour week is filled with allocated teaching and research activity across the entire year?‑‑‑Sorry, could you just ask that again, I'm sorry?
PN1319
It's not the case, is it, that if I assumed - I'll break it down. If I assume, for the moment, that they have a 38 hour week, it's not the case those allocated activities, the teaching, the tutorials, fill 38 hours a week across the entire year?‑‑‑No. There will be some staff for whom teaching and teaching related duties either fill or come very close to filling 38 hours a week.
*** KEN MCALPINE XXN MR PILL
PN1320
Particularly with the teaching only or teaching intense, teaching scholars, they've got various names, but people who are allocated a much greater proportion of teaching and do very little research?‑‑‑Well, I mean I think there'd be academics who would contest even that, that there are people who are - I don't want to give a categorical answer. So, for example, at some universities PhD - there's a question, for example, about whether PhD supervision is part of research or part of teaching. So there's arguments on both sides. You have a student, you're mentoring them in their progress. In other areas there's a research project and there's a PhD student on it, so it's part of the research. So at most universities there's a controversy between whether PhD supervision is teaching. So there will be some people who have 12 hours teaching and they will have five PhD students. Now, depending on arguments that occur, that are probably beyond my expertise, supervising a PhD student is argued to be anything from 50 to 140 hours work a year. So if you have five PhD students and you're teaching 12 hours a week and you have an administrative load, then if PhD is counted as teaching then you're allocated teaching work essentially fills up a 38 hour week. Then you have research requirements sitting on top of that. So I just want to cite that I would say that what you've said is generally true but I'm not going to say - you asked me for a categorical answer and I wouldn't give a categorical answer, what I'd say is what you put to me is generally true.
PN1321
Yes, thank you.
PN1322
VICE PRESIDENT CATANZARITI: Are you going to another topic, Mr Pill?
PN1323
MR PILL: I was going to go to another topic.
VICE PRESIDENT CATANZARITI: I think we'll take an adjournment until 2 o'clock.
<THE WITNESS WITHDREW [12.54 PM]
LUNCHEON ADJOURNMENT [12.54 PM]
RESUMED [2.01 PM]
PN1325
VICE PRESIDENT CATANZARITI: Thank you, Mr Pill.
MR PILL: Thank you.
<KEN MCALPINE, RECALLED [2.02 PM]
CROSS-EXAMINATION BY MR PILL, CONTINUING [2.02 PM]
PN1327
MR PILL: One last question about the nature of academic employment: it's the case, isn't it, that academics, on application and approval, have access to what's commonly referred to as the outsides studies program, or OSP; you'd agree with that?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1328
And that's a process - - -?‑‑‑Well, sorry - subject to limitations: usually research-only staff are excluded and they're about 28 per cent but, yes; leaving that - and often fixed-termers are excluded and that's about 40 per cent but leaving those groups aside, yes.
PN1329
Well, what does that mean; that 68 per cent of people don't get access - - -?‑‑‑Sorry - I realised as soon as I said it there's a big overlap between those two groups. Most research-only staff are on fixed-term contracts - probably 90 per cent - and so, yes, to be fair it's probably more like 40 per cent are excluded. But, yes, with that exception, most teaching and research staff, certainly have access to that.
PN1330
Yes, thank you. So what it involves - there's a period of time, generally in the order of six months, where they continue to receive pay from the university but they will go and collaborate with colleagues at other universities overseas and similar activities to that?‑‑‑Yes, yes; usually the approval of it is subject to actually having a specific program of work.
PN1331
Yes?‑‑‑It's not leave, it's work, but yes, I agree with you.
PN1332
That program of work might be very high level: they're going to go and collaborate with academics in law at the University of Harvard and look at comparative labour law issues?‑‑‑Yes.
PN1333
Now, can I take you to attachment B of your first statement?‑‑‑Yes, I have that.
PN1334
Your evidence at paragraph 9 of that statement is: "In preparation for these matters I caused to be collated during 2015 all the main clauses dealing with academic workload, with induction arrangements for casual academic employees in academic enterprise agreements. These are attachment B to this statement." Now, I'm going to take you to some of those. Before I do, can I just put some general matters to - might limit the number to which I need to take you? These are enterprise bargaining clauses that have been negotiated by the NTEU regarding academic workloads?‑‑‑Yes.
PN1335
You accept that none of them provide for the payment of overtime?‑‑‑It depends how you define, "overtime." I think the ACU one, by reference, has a provision for pay - extra payments for certain classes of extra work. But with that exception to my knowledge none of them do.
*** KEN MCALPINE XXN MR PILL
PN1336
Putting ACU to one side for a moment, none of them actually provide for additional payment, whether they call it overtime?‑‑‑That's right.
PN1337
None of them reference recording research hours?‑‑‑Recording research hours? No.
PN1338
Or monitoring of such hours?‑‑‑Monitoring, no.
PN1339
None of them require distinctions between productive, self-directed work and required work?‑‑‑Not in those words, no - by implication they do in the sense that they talk about workload allocations, which include requirements in relation to teaching and research and administration and service. So by implication, they don't exclude the possibility - or they contemplate, in fact, as per our earlier discussion, that people could be engaged in productive, self-directed work which wasn't part of their work allocation. So I think that answers your question - they don't use those terms but they contemplate the idea that an employee has a work allocation and is entirely free to do other productive, self-directed work on top of that.
PN1340
With some limited exceptions the clauses provide mechanisms for review of workload allocation, including on the basis that they're unfair or unreasonable?‑‑‑A system of internal review, yes.
PN1341
Yes. That system of internal review will generally include raising it initially with a supervisor but generally goes to some internal board of review?‑‑‑Whether that's generally true, I think that's true in many cases, certainly; I'm not going to quibble.
PN1342
And in some cases but not all there's also an overarching committee, sometimes called the WAC - the Workload Allocation Committee - - -?‑‑‑Yes.
PN1343
- - - which provides general oversight in relation to academic workload allocation matters?‑‑‑Yes, yes, that's commonly true.
PN1344
The WAC is often - bipartisan, if I can put it that way: includes representatives nominated by the university and representatives nominated by the NTEU?‑‑‑Yes.
PN1345
Can I take you to a couple of them? I apologise if my page numbers are out. My folder was originally numbered differently?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1346
I believe it's number - page 309 in your folder. I'm hoping it's the Monash - - -?‑‑‑Yes.
PN1347
VICE PRESIDENT CATANZARITI: Monash is 309 and 310.
PN1348
MR PILL: I just wanted to - in your experience is this clause - you're familiar with the Monash clause?‑‑‑Familiar with it - I'm sure I've read it. I mean, yes, I have read it; I can say that much.
PN1349
All right?‑‑‑I couldn't off the top of my head tell you what its architecture was, I have to admit. But I can quickly see that, yes.
PN1350
There is some difference in architecture, to use your term, across enterprise agreements?‑‑‑Very much so.
PN1351
But this is not atypical; there are a number that would follow this type of approach?‑‑‑Yes, yes.
PN1352
So can I just put some matters to you? You'll see at 60.1, "University commits where ever possible to a number of matters, including" - you can read for yourself?‑‑‑Yes.
PN1353
The first dot points - that it sets up a process for the fair and equitable allocation of work to insure that the workload is manageable. You accept that?‑‑‑No: the words, "where ever possible", will almost certainly have been insisted upon by the university because budgetary considerations can mean that sometimes it is not possible. So I think it's weasel words. You know, I mean, it has a nice ring to it. What it actually provides for is enforceable rights for employees would have to be a matter for submissions, I imagine, but where ever possible - those sorts of terms, like, "Where ever possible", have certainly been relied upon in discussions with management and insisted upon for a purpose.
PN1354
So you say the clause has no - - -?‑‑‑Well, there is lots of arguments - and I suppose this isn't the place to canvas them - about whether 60.1 is aspirational or operational and with that constraint about how operating areas have to operate within their budget, I would say that the, "where ever possible", throws into doubt exactly what rights that provides to people.
*** KEN MCALPINE XXN MR PILL
PN1355
Perhaps we'll park that. If we look at academic work - and we've canvassed this at some length this morning - you'll see that it's been agreed, this wording has been agreed between the parties, including your union - - -?‑‑‑Yes.
PN1356
- - - that academic workload is a combination of self-directed and assigned tasks - sorry, I'm reading 60.4?‑‑‑Yes.
PN1357
"The assigned proportion of an academic staff member's work will include" - and it identifies teaching and those sorts of matters that I mentioned this morning. You'll see at 60.5: "The remainder of an academic staff member's workload is self-directed, consistent with the university's strategic plan and priorities. It is time where staff members can research and other scholarly activities appropriate to their appointment at the university." If I backtrack to 60.4, it talks about academic work in the second sentence: "All staff members at the university should have adequate, appropriate opportunities to perform in all these areas." Again, do you say that clause is inoperative or would you say it has operation - sorry, 60.3, second sentence of 60.3?‑‑‑Well, you would have to read it in context. To say that it had no operational effect would be to go too far, in my opinion, but all academic staff members at the university should have adequate and appropriate opportunities to perform in all these areas. It clearly is written in the context, for example, where perhaps at Monash, 35 per cent of academic staff are employed as research-only staff and don't really have opportunities to develop in teaching. Research assistants don't have opportunities in relation to leadership, et cetera, et cetera. So whether it actually means all academic staff members should at any time have that opportunity or whether it means over their careers or what it actually means is certainly open to question. You know, again, that would be a question of argument. Given 35 - or thereabouts - 35 per cent of all staff are research-only staff and are employed on fixed-term contracts on the basis that they are engaged only for research functions, those people can't engage in teaching.
PN1358
Mr McAlpine, that's not quite true, is it? A number of so-called research-only staff undertake teaching activities?‑‑‑They may. Whether therefore their fixed-term contract status is thrown into question by that is another question because another part of the agreement says fixed-term employment is research only. So - but my general point is I don't think that level A research assistants - and I don't think we would argue that the clause means that level A research assistants have opportunities for leadership except in some sort of prospective career sense.
PN1359
Perhaps I'll take you away from the particular words at the moment and - do you accept that the architecture of this clause and ones like it is to set up a percentage of allocation - and this appears most directly at 60.6 - but a percentage of allocation attributed to teaching, research and other activities and there is capacity to vary that starting point, in this case in the individual staff member's engagement profile. Then armed with those percentages, the way the clause works is that there are workload allocation models that have to be developed within the university that provide for the fair and equitable distribution of workload to staff members based on those percentages?‑‑‑That's a fair - that is a fair summary: not a complete summary but a fair summary.
*** KEN MCALPINE XXN MR PILL
PN1360
If I take you to 60.9, which is - I'm not sure what page number I'm sorry.
PN1361
VICE PRESIDENT CATANZARITI: 311.
PN1362
MR PILL: Thank you: "Each academic unit will develop and maintain a workload model through a collegial process and will provide for the equitable and transparent allocation of workload with respect to teaching and other activities, with the academic unit"?‑‑‑Yes.
PN1363
We see there that the workload allocation model is focussed on those allocated duties. They don't seek to regulate research as such. That's a function of the percentage that appears at 60.6 in my engagement profile?‑‑‑You might have lost me there, I'm sorry. The workload model will provide for the equitable and transparent allocation of workload with respect to teaching and other activities.
PN1364
Yes, so if you go back a page there's a list of teaching and other activities?‑‑‑Yes.
PN1365
At 60.8 there's a list of what teaching includes and then talks about other activities may include - - -?‑‑‑Yes.
PN1366
If I shorthand that, that's some of the service-based activities in this model?‑‑‑Yes, yes.
PN1367
If I take you back to 60.6 there's teaching 40 per cent, research scholarship 40 per cent and other activities, 20 per cent?‑‑‑Yes. Yes, I see what you're getting at; I see what you're getting at.
PN1368
The Deputy President asked you a question about the process by which it occurs and do you accept that under this model - sorry, under this clause - that that occurs through the development of academic workload models with then lead to the staff member and the supervisor discussing in a collegiate way what the workload will be for the year?‑‑‑Well, discussing and the supervisor determining it, yes.
PN1369
Determining under the workload model those allocated activities - the teaching and other activities with the academic unit?‑‑‑Yes. I think the super - it's clear the supervisor determines ultimately what the mix is and then within that mix what the allocation is.
*** KEN MCALPINE XXN MR PILL
PN1370
Do you accept that in some other clauses - and I can take you to - they actually use the word, "agree"?‑‑‑Yes.
PN1371
This one doesn't and I accept that - actually use the word, "agree", that their workloads have to be agreed. In this one, if I take you to 60.13, you accept that there's a mechanism at 60.13 - it's about a sequence but 601.4 actually provides a mechanism and 60.13 requires a number of factors that the university has to have regard to in determining what are unreasonable hours of work. You see that?‑‑‑Yes, yes, I do.
PN1372
60.14 - there is a mechanism that's been negotiated and agreed into this enterprise agreement - - -?‑‑‑Yes.
PN1373
- - - for staff or indeed any concerns, whether they be raised by staff - but concerns to be raised and dealt with?‑‑‑Yes.
PN1374
That includes raising it with the supervisor, then progressing to a faculty board of review?‑‑‑Yes.
PN1375
It ultimately ends up with the - sorry, ultimately ends up with - sorry, that board of review. Then at 60.15: "If I staff member is still dissatisfied" - then you can use the disputes procedure under the agreement?‑‑‑Yes.
PN1376
Are you aware of how many disputes or how many requests for review have arisen at Monash University as an example, under those clauses?‑‑‑I wouldn't be surprised if it were very few but no, I'm not aware.
PN1377
Mr Picouleau will give evidence that since 2010 that there have been five requests, two of which have progressed to a board of review and none have progressed further but you're not aware?‑‑‑No, I wouldn't - I'm sure Mr Picouleau is right.
PN1378
Now, can I take you to page 296?‑‑‑Yes, I have that.
PN1379
Which I'm hoping is the James Cook University reference - is that right?‑‑‑Yes, it is: mine starts on 295 for James Cook.
PN1380
Thank you?‑‑‑No - 295, yes, I've got the James Cook clause, yes.
*** KEN MCALPINE XXN MR PILL
PN1381
James Cook clause 34, "Academic workload allocation framework." You'll see that at 34.1 there's a number of principles?‑‑‑Yes.
PN1382
At 34.2 there's a number of commitments and they include transparent process of work allocation that recognises required areas of academic work; fair and reasonable level and equitable allocation of work recognises the diversity of JCU and a requirement to consult and a requirement to have access to a grievance process. Now, you accept that that clause operates or is that just another aspirational clause?‑‑‑Well, I think 34.2 is a summary of what follows, really. It's a description that would have some effect on how you interpret what follows, but yes, it's a description of what follows.
PN1383
Yes, and again, you'll see there's a process of developing workload models - - -?‑‑‑Yes.
PN1384
- - - across different schools, different disciplines, developed in a collegiate manner that then form the basis for allocation of work?‑‑‑Yes.
PN1385
Under 34.5, the work profile, as it's called, will essentially determine those percentages and if I can get you to go over to - there's two tables. There's one - the fourth page in my version?‑‑‑Yes.
PN1386
It has down the left-hand side different work profiles: teaching and research academic, early career teaching and research academic, teaching specialist, research-focused, teaching - - -
PN1387
VICE PRESIDENT CATANZARITI: It's on page 298, for the record.
PN1388
MR PILL: Thank you, Vice President. It's the case, isn't it, that this architecture essentially identifies different types of academics based upon whether they're focused on research, focused on teaching or have what we might call a balanced teaching and research profile?‑‑‑Yes.
PN1389
There's a number of enterprise agreements that you've negotiated that also follow a similar architecture?‑‑‑Yes.
PN1390
This clause, like the Monash clause - if I can take you back to 34.4 and 34.4.2 - has a figure, an annual figure, in this case 1,638 hours of academic staff availability to be managed through the workload allocation, consistent with that clause?‑‑‑Sorry, where is this?
*** KEN MCALPINE XXN MR PILL
PN1391
34.4 - - -?‑‑‑Yes.
PN1392
- - - and the second sub clause, 34.4.2?‑‑‑Yes, it doesn't in my opinion - I read this the other night. In my opinion this doesn't actually limit the working hours, though. It's an explanation of the basis for calculation of an annualised academic workload and then it goes on about leave and then it explains that when you subtract that leave from that notional calculation you get 1,638. It doesn't - it certainly doesn't provide an academic with an entitlement to a 1,630-hour year. I don't think anyone would seriously suggest that.
PN1393
If you go back to the table in learning and teaching and it attaches a maximum number of contract hours?‑‑‑Yes.
PN1394
Do you say that has operative effect?‑‑‑Yes, yes; there's no question about that, no.
PN1395
Again, if you keep going over the pages there is at 34.6 some detailed guidance as to what constitutes different elements of academic work activities. You see that?‑‑‑Yes, yes.
PN1396
If I can take you to the last page of this document, at 34.10 there is again a process for review?‑‑‑Yes.
PN1397
You know how many applications for review have occurred at James Cook University?‑‑‑No, I don't.
PN1398
Just whilst we're there, to save my page numbering, the next page - which is La Trobe University - you'll see it's - there are obviously some differences but it's broadly similar to the Monash clause?‑‑‑Yes.
PN1399
Again, provides at the back end of that clause - 52.24 and 52.25 - sorry, I need to backtrack to 52.22?‑‑‑Sorry, 52.22?
PN1400
Yes?‑‑‑Okay, yes.
PN1401
The last four sub clauses of the clause?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1402
There is a mechanism for dealing with concerns about allocation of workloads and unreasonable hours of work and a process of consultation and discussion leading to a review and in this case there is also oversight by what's called a workloads monitoring committee?‑‑‑Yes, sorry, where is the workloads monitoring committee?
PN1403
The very last sub clause?‑‑‑Yes, it doesn't have any determinative functions as far as I can see but yes, I see that.
PN1404
The immediately preceding clause there is not only access to internal review, there is recourse to the disputes procedure?‑‑‑Yes.
PN1405
Do you know how many workload review requests there have been at La Trobe University?‑‑‑No, I don't.
PN1406
I'll take you to one last one. Can I take you to page 274; this is Deakin University?‑‑‑Yes.
PN1407
34.2: "The university will insure that total work allocated to individual staff members is fair and transparent." I pause there: you accept that that has operative effect?‑‑‑Fair and transparent, yes.
PN1408
And, "The university will insure" - obligatory language?‑‑‑Yes.
PN1409
There's a number of things that they will then take reasonably practical steps to do?‑‑‑Yes.
PN1410
At 34.4: "Work will be allocated within a maximum of 1,690 hours", and then it references 46 weeks of the year?‑‑‑Yes, I think you - yes, you have to read that as part of a whole thing. Again, it doesn't create an entitlement for an academic to work a particular number of hours.
PN1411
Let's turn over the page to 34.9, "The process of work allocation will involve the following" - - -?‑‑‑34.9, yes.
PN1412
In this case there is a work allocation where research is allocated first, based upon the previous three years' research output?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1413
There is a cross-reference. It talks about some other factors to be taken into account?‑‑‑Yes.
PN1414
Things like opportunity to build a research profile, early career researchers, assisting a return to research after extended leave, et cetera. Then we have teaching. Teaching is to be allocated up to a maximum. Now, that maximum is a percentage, is it not, of the 1,690 hours?‑‑‑Yes, yes.
PN1415
At 34.11, there is a mechanism for staff who have concern about their academic work allocation and there is again an internal mechanism - - -?‑‑‑Yes.
PN1416
Which leads to the work allocation review committee, as it's called in this one?‑‑‑Yes.
PN1417
If you're not happy with that committee it then goes to the Vice Chancellor and you'd accept that it's also amenable for the disputes procedure?‑‑‑On the procedure, yes; not on the substance. The Vice Chancellor's decision will be final.
PN1418
Yes, well, you can't oust the jurisdiction but we'll leave that for submissions, perhaps?‑‑‑Yes.
PN1419
In terms of the activities, perhaps by way of example if I take you to 34.20, we've seen this already in a number of the other clauses: it's an indicative list of things that constitute service?‑‑‑Yes.
PN1420
I put some of these to you as examples and you acknowledged and accepted that they were part of service and includes for example at the end there, "Administration duties not covered elsewhere"?‑‑‑Yes.
PN1421
Now, having gone through those clauses you'd accept that the NTEU has negotiated provisions that provide for mechanisms and protections regarding allocation of academic work?‑‑‑Yes.
PN1422
And they primarily centre around workload models being developed?‑‑‑Yes.
PN1423
You accept that that's because - and that they need to be developed collegiately, as a general feature of those clauses?‑‑‑Well, I think they have to be developed in consultation with staff or something like that. You'd need to show me where it said, "Collegially." But it may well - - -
*** KEN MCALPINE XXN MR PILL
PN1424
Well, an example, 60.9 of Monash: "Each academic unit will develop and maintain a workload model through a collegial process"?‑‑‑Yes.
PN1425
But seguing from your answer, irrespective of how the workload model is developed, they all envisage an individual discussion that involves discussion of the particular individual academic?‑‑‑Yes.
PN1426
And all of their circumstances in their actual work?‑‑‑Yes.
PN1427
Now, can I take you to your clause, which appears in the NTEU outlines of submission of 11 March, which is exhibit B, thank you?‑‑‑Which I don't actually have in front of me - I'd like, if I could, if I'm going to answer questions about it - - -
PN1428
Yes, sorry, Mr McAlpine, just bear with us?‑‑‑Yes.
PN1429
Page 5 onwards, thank you. Now I asked you some questions earlier about where this clause came from, whether it was enforced anywhere in any industrial instrument. You indicated it was not. Were you involved in drafting this clause?‑‑‑Yes, I was.
PN1430
You accept that we don't have any experience of how the clause would operate in practice?‑‑‑Yes.
PN1431
It's an untested clause?‑‑‑Yes; some of the concepts in it are - exist in the world in agreements but as a package, absolutely.
PN1432
You accept that it is different from existing industrial regulation that we just went through in - - -?‑‑‑Yes.
PN1433
Now, in the context of this award proceeding, this is in effect your third draft clause?‑‑‑Yes.
PN1434
You see that?‑‑‑Yes, there has been some narrowing of the claim.
PN1435
Well, Mr McAlpine, it's more than that, isn't it? There was some narrowing from version two to version three?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1436
Do you accept that the version that you filed originally in March was quite different to this? You recall that?‑‑‑It was - I don't think it was different in its operation. It was different in its expression. We decided that it was the first draft was a bit clumsy and we tried to make it more plain English and I think we generally narrowed the scope of the claim. I think that's a fair description but you might want to correct me on that.
PN1437
You accept that the first version didn't have any concept of additional payments?‑‑‑As in first - the one put in in March last year? If you - yes, I think the very first one that we lodged didn't have a concept of additional payments. It just imposed a cap, I think that's correct.
PN1438
You'd accept that you've proffered each of those to this Commission as being a necessary variation and only to the extent necessary provided to be a safety net?‑‑‑Yes, yes. There was a good reason why we put the overtime in, having a look at the modern award objective.
PN1439
We'll come back to that. You also accept that - do you accept now that the existing clause in the award - 22.1 - meets the requirement for section 147?‑‑‑I think we conceded that in our submissions.
PN1440
Yes, in the last version; the 11 July submissions?‑‑‑Yes.
PN1441
Now, in those last submissions you foreshadowed - and it was foreshadowed in the opening that you may be proposing a further change to the craft clause. Do you recall that - you were here for Ms Gale's opening?‑‑‑I recall that she said something. Just at the moment after four hours in the witness box I'm struggling to remember what it was, I'm sorry. I should remember it but I don't.
PN1442
It relates to discipline?‑‑‑Yes, yes. Now you've prompted my memory: the idea that the term, "discipline", that the reference to the ordinary hours workload, the reference to a relevant academic level and discipline was perhaps too fine-grained and there are in fact discipline areas that you could group together relevantly, so humanities, creative arts, business law and economics, perhaps.
*** KEN MCALPINE XXN MR PILL
PN1443
Yes, and perhaps just for the record and to assist the bench, your submission - NTEU submission about that appears at paragraph 39 of the 11 July submission. That's the nature or extent of the proposed change that you're foreshadowing?‑‑‑Well, if you're asking me is that the extent of what we foreshadowed so far, yes. I mean, I can tell you of other changes that we are contemplating, yes, which really go to questions of the scope of required work, yes.
PN1444
Yes, well, Mr McAlpine, I appreciate this is an award review?‑‑‑Yes.
PN1445
You're an industrial officer. You understand that this is now the third attempt and we've called evidence about that and I'm going to ask you questions about that. Perhaps you can indicate to the bench, are there other significant changes you're proposing for this clause?‑‑‑Not significant changes but I think that we've had some discussion and our view is that in the definition of, "required work", if I can just explain briefly; required work, the definition in the proposed sub clause 22.1, has three components.
PN1446
Yes?‑‑‑The third component - and it is probably our fault - the third component of ours - that was intended to deal with promotion expectations that were in some sense mandatory or required, so for example at University of Canberra they have what's called - we have a provision that's essentially an up or out provision. So one is appointed at level B, broad banded with level C under the enterprise agreement. At the end of seven years' employment, if you haven't been able to be promoted to level D, then your employment can be terminated under the terms of that enterprise agreement, which is an early adoption of an American model. In a lot of American universities you're appointed as an assistant professor and you've got seven years to get promoted to professor. If you don't get promoted to professor after those seven years then your employment can be terminated, usually on 12 months' notice or something like that. So our intention in relation to required work was not to say that the requirements an employer has for promotion. It was meant to be like a mandatory requirement for promotion and on reflection we think that is actually captured already by 2. So it's not actually an operational change to what our intention was. So our inclination is to narrow the scope, we don't think substantively, but in drafting terms to take number 3 out.
PN1447
VICE PRESIDENT CATANZARITI: So to your mind, performance standards are no different to promotion expectations?‑‑‑We thought on reflection that required performance standards - now if they include promotion then they're required performance standards and if they don't include promotion then they're not required performance standards. So what we were going to foreshadow - and it's only because you've asked the question - is that we thought that it was probably simpler to just say 1 and 2.
PN1448
Ms Gale, when are we going to get an amended document then, if there are any other changes?
*** KEN MCALPINE XXN MR PILL
PN1449
MS GALE: Your Honour, I would anticipate that we would be able to provide that early next week.
PN1450
VICE PRESIDENT CATANZARITI: Yes, but I don't think it's a useful way to get it, through a witness if there's going to be amendments to a document.
PN1451
MS GALE: I don't think that was our intention.
PN1452
MR PILL: Can I just flag - I intend to ask the question - the witness a number of questions about this. It is a little unsatisfactory that - if there's more foreshadowed amendments. Are there likely to be - I think the witness has answered there's not going to be other substantial changes of substance.
PN1453
VICE PRESIDENT CATANZARITI: Well, the deletion may not be substantial but an addition might be, Mr Pill. Till we see what the - - -
PN1454
MR PILL: Can I explore what the witness has intended that there will be additions?‑‑‑I think the answer to that is no. Can I just for completeness also say that in our - I think we put in our submissions that the first sentence of 22.8 was essentially in the nature of a recital and was probably not necessary. I think we've already put that in our submissions. I don't think we've actually said that we withdraw it. But in response to the firestorm of opposition we thought, well, it really is just explanatory. It doesn't really have operational effect. So we thought that there was no reason why that needed to be maintained either. It's in the nature of a recital.
PN1455
Yes, all right, thank you. Can I ask you a number of questions about - just before I leave B(iii), so this reference that you're now proposing to take out and you reference the University of Canberra - - -?‑‑‑Yes.
PN1456
It's unique in respect of - - -?‑‑‑It's unique in Australia, yes.
*** KEN MCALPINE XXN MR PILL
PN1457
So there's no other university in Australia that have that equivalent provision that you're attempting to address by B(iii)?‑‑‑The same provision, no: I think it is fair to say that quite a number of universities that appoint level A academics who aren't currently studying for a PHD do so on the basis that they expect them to complete their PHD and be successfully promoted to level B as part of their, if you like, probation. So while the University of Canberra provision is unique in that it involves appointment at level B and promotion to level D, I wouldn't rule out the idea that there are in fact other provisions that say, "You're appointed on probation at level A and we expect by the end of three years or five years' probation that you will have obtained your PHD and been promoted to level B." So that is arguably - but as we said I don't think on reflection - what we've put there in B(ii) is sufficient to cover that.
PN1458
All right. Can I ask you some questions about required work?‑‑‑Yes.
PN1459
In your clause does the concept of required work apply to both where the hours are recorded and when the hours are not recorded?‑‑‑I think it doesn't apply to when they're recorded.
PN1460
So it does not - - -?‑‑‑I think that's right. I mean, it's a question of construction but I think the - because I don't think the term, "required work", appears in 22(iv), which is the sort of default, never-use provision of recording hours of work. So the term, "required work", doesn't - I think doesn't appear in that clause.
PN1461
So in 22(iv) then, if that were the case, and we're trying to assess what hours have been worked, what limits the work that we have to look to to see whether I'm over the 38 - the average of 38?‑‑‑Well, we're talking about 22(iv)?
PN1462
Yes?‑‑‑Well, it says: "This sub clause applies in circumstances where the employee's actual hours set by the employer are recorded", et cetera, et cetera. So just like the general staff, what the employees does during those hours is essentially at the discretion of the employer and what they would attract additional payments if they worked additional hours. So - - -
PN1463
So who is doing the recording here; the staff member or the university?‑‑‑Well, the university through the staff member - I imagine that's an administrative question. It's for general staff.
PN1464
We've canvassed at some length that academics don't sit in their offices 9 to 5, where they work, when they work?‑‑‑Yes.
PN1465
The only sensible answer to that could be that the staff member is self-recording; you accept that?‑‑‑No.
PN1466
They're not attaching trackers?‑‑‑Well, let me say 22(iv), as I think we've said in our submissions - 22(iv) is put there on the off chance that an employer wants to employ somebody, for example, to do marking at level A. Not as a casual but if you're going to have flexible work practises you have to have a system where you can employ somebody for 20 hours and say, "We want you to mark for 20 hours."
*** KEN MCALPINE XXN MR PILL
PN1467
They'd be employed as a sessional, wouldn't they?‑‑‑They could be or they could be employed as a non-sessional. I don't - I would be very surprised if anyone were employed under 22(iv) anywhere in Australia.
PN1468
Mr McAlpine, this is your clause?‑‑‑Yes.
PN1469
But you've got it there just in case?‑‑‑We've got it there if an employer wants to employ an academic hour for hour, they can. We're not ruling that out. We're saying that's a question of management prerogative.
PN1470
DEPUTY PRESIDENT KOVACIC: Can I just perhaps ask a question: how do you see that fitting in with the modern awards objective?‑‑‑Well, we think that it's providing flexibility as to which model the employer sees as most productive.
PN1471
But I suppose the question I have is that in circumstances where your evidence a moment ago was that you don't envisage that anybody is employed in the circumstances that you've outlined. In those circumstances, why would it be necessary to be included in a modern award?‑‑‑I suppose because we hope eventually that some of the work that's being done by - some of the work that's being done by sessional employees could actually be bundled together and turned into a proper, ongoing job. So there could be positions for markers or other things or field workers; research assistants, where in fact the employer does decide to do that. Now, I don't think that that - when I say I wouldn't expect, I wouldn't rule that out as a possibility but I would expect that if this clause came in overwhelmingly, I should say - probably not never - but overwhelmingly employers would continue to use the sort of existing norms of the industry to employ people. But if - I mean, we're not insisting upon it. We saw it as meeting the modern awards objective in a sense that we were giving the employer the choice about whether they wanted to use essentially model A or model B.
PN1472
To the extent that you've raised the possibility that it might be used, why wouldn't you pursue that through bargaining?‑‑‑Well, because we don't - I suppose as a general proposition we don't support the idea of academics recording their hours. I mean, that's our position. What we were doing with 22(iv) was saying that if an employer wants to be able to do this and thinks that's the best way of organising the work, we wouldn't have thought that the award should completely rule that out. I think that's probably a fair way of putting it. I mean, I have no - I don't think the union has any particular attachment to 22(iv). We thought that in terms of flexible work practices there was no in-principle reason under the modern award objective why the employer shouldn't be able to choose one or the other.
*** KEN MCALPINE XXN MR PILL
PN1473
So in terms of the flexible work practices, what's driving this particular issue? What is driving - I mean, I just struggle in circumstances where your evidence is that you don't envisage any university employing anyone on this basis - I just really struggle to see what the motivation is for including the clause?‑‑‑Well, I suppose it was to - I suppose it was to head off the argument that you have to use this model rather than employing academics like you employ other people, which is on an hour-for-hour basis. So it was really about saying we don't see any reason why the award safety net shouldn't provide that option for the employer.
PN1474
Thank you, Mr Pill.
PN1475
MR PILL: Thank you. There's just one last question about it: entitlement to overtime is triggered by the hours being recorded and exceeding but they're hours of work?‑‑‑Yes.
PN1476
So you accept that we still need to undertake some assessment as to, well, what have they been doing work in those hours; you accept that?‑‑‑Under 22(iv)?
PN1477
Yes?‑‑‑Yes, yes, that's right.
PN1478
That brings in all of the vagaries of when an academic is working and not working?‑‑‑No, because 22(iv) says this applies in circumstances where the employee's actual hours of work are set by the employer.
PN1479
Yes, so we set the hours and we say, "We don't want them to exceed 38 over the course of the year"?‑‑‑Yes.
PN1480
So the period of account is generally 12 months, as I understand your clause?‑‑‑Yes.
PN1481
It gets to the end of the year and the staff member says: "I've recorded my work. It totals 2,700 hours"?‑‑‑Yes, well, I would say that person wouldn't have a claim.
PN1482
That's cold comfort to my client?‑‑‑Well, the hours of work have been set by the employer as 38 times 46. That's - the hours have been set.
PN1483
Do I rely on 22.8 to determine whether it's work for these hours that they're claiming; whether they're work or - - -?‑‑‑22(viii) says: "To avoid doubt with respect to employees whose actual hours of work are not set by the employer" - - -
*** KEN MCALPINE XXN MR PILL
PN1484
So it doesn't have any application? Okay, no, thank you?‑‑‑No, that's right, because it doesn't need to.
PN1485
Right?‑‑‑It's covered by 22(iv).
PN1486
All right. I'll take you back to 22.1(b)?‑‑‑Yes.
PN1487
Is required work the same as allocated work?‑‑‑Where are you looking for allocated work, I'm sorry?
PN1488
Well, it's used in other places in the clause, including 22.5?‑‑‑22.5 - - -
PN1489
22.5(a): "The number of hours per week within which employees at the relevant academic level and discipline could with confidence be expected to perform required work as allocated to the employee"?‑‑‑Yes, the required work as allocated to the employee, yes - I think it's not the same thing as - no, the required work allocated to the employee means all of required work.
PN1490
Right, so required work is not limited by the concept of allocated work? They're essentially synonyms?‑‑‑Yes. Yes, although within 22.1(b)(i), there is a reference there as taking the whole noun, if you like: the specific duties and work allocated to an employee.
PN1491
Yes?‑‑‑That means, you know, we want you to do this teaching this - these specific tasks.
PN1492
Yes?‑‑‑That is distinct from (b)(ii), which is the work required to meet performance standards.
PN1493
If I've understood you, (b)(ii) could also include allocated - - -?‑‑‑Yes, that's right: they're not mutually exclusive. (b)(i) and (b)(ii) are not mutually exclusive.
PN1494
But everything that falls into (b)(ii) for the purposes of clause 22.5(a) is allocated to the employee; is that right?‑‑‑Sorry, just ask me - sorry.
PN1495
So everything that falls within (b)(ii) or indeed within required work, if I can make it easier for you - - -?‑‑‑Yes, required work.
*** KEN MCALPINE XXN MR PILL
PN1496
- - - falls within the scope of 22.5(a)?‑‑‑Yes, I think that's right. I think that's right.
PN1497
If I take you back to (b)(ii) then, so this is - perhaps not withstanding the answer you gave before that they overlap - Roman (ii) covers, to the extent that they're not covered by (i), any work necessary to meet performance standards?‑‑‑Yes.
PN1498
The performance standards that you're referring to there, what are they? Are they attached to your statement?‑‑‑Well, are they attached to my statement? Well, given this is a prospective thing, the simple answer to that is no. They are whatever the employer defines them to be.
PN1499
So paragraph 14 - - -?‑‑‑It's up to the employer to express any required performance standards. If there are no required - there's no requirement that there be required performance standards.
PN1500
Okay?‑‑‑If there are required performance standards then they should be able to be met within - et cetera, et cetera.
PN1501
All right. Can I take you to paragraph 14 of your first statement?‑‑‑Yes.
PN1502
Just give you a chance to find that.
PN1503
DEPUTY PRESIDENT KOVACIC: Sorry, could you just repeat that?
PN1504
MR PILL: 14 - you've evidence there that you caused to be collated during 2015/16 as many standard academic performance expectation documents or templates from Australian universities which the union was able to obtain - - -?‑‑‑Yes.
PN1505
- - - from relevant websites from its branches. Although not complete it is a fair and representative sample of those policies and the main matters which they cover?‑‑‑Yes.
PN1506
So do those documents - are they examples or indicative of what might constitute performance standards expected of the employer?‑‑‑Well, some parts of them are: to the extent that they go to those matters they deal with a lot of procedural things.
*** KEN MCALPINE XXN MR PILL
PN1507
Yes?‑‑‑To be fair, many of them don't actually - some of them set performance standards. Others of them set the process by which performance standards are to be set. So covering both of those things then as a general idea I think that's correct.
PN1508
All right. Perhaps I can take you to a couple of them, then; this is attachment F?‑‑‑Yes.
PN1509
You gave evidence before that you were surprised at how voluminous this had become over the last five to 10 years?‑‑‑Yes.
PN1510
Can I take you to page 581, which it's - it's not a criticism - it's broadly in alphabetical order?‑‑‑Yes.
PN1511
It doesn't cover every university. The first in my client's - come to the University of Adelaide - - -?‑‑‑Yes.
PN1512
- - - which appears at page 581?‑‑‑Yes.
PN1513
MS GALE: Could I just interrupt briefly to explain that attachment was actually spread across two folders? It begins in one and concludes in the second. I think you're in the first of those two folders.
PN1514
VICE PRESIDENT CATANZARITI: In mine it starts on the second folder.
PN1515
MS GALE: Yes, and continues into the third.
PN1516
VICE PRESIDENT CATANZARITI: Yes, but we're on page 581 in the second folder?
PN1517
MR PILL: Yes. Thank you and thank my friend. The document that I've got has the University of Adelaide logo in the top right-hand corner. It starts with, "Setting objectives"?‑‑‑Yes.
PN1518
That's the document. Now, I'll just give you a chance to look at that?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1519
You've given evidence that I took you to that these are a fair and representative sample. Now, on page 5 of that we have some example objectives: KRA, teaching KRA, KRA research, KRA financial?‑‑‑Yes.
PN1520
People and other - is this an example of one of those documents which doesn't in itself set objectives but describes briefly a process by which some objectives will be set?‑‑‑Without having read it all I think that's a pretty fair summary. Yes, I think that's fair enough.
PN1521
So - - -?‑‑‑Remembering that it - sorry, yes, go on.
PN1522
So under your clause, which includes any work necessary to achieve - sorry, to meet performance standards expected, this document obviously doesn't itself enable any guidance or any real guidance as to what activities I'll be doing?‑‑‑Yes.
PN1523
It certainly doesn't mandate or dictate them?‑‑‑No, no, no. No, that would be done - if it were done that would be done by the relevant supervisor.
PN1524
So we might decide that I'm going to publish a couple of articles in B-ranked journals by the end of the year?‑‑‑Yes.
PN1525
Can I take you to page 768?‑‑‑Yes.
PN1526
It's sideways in my folder?‑‑‑Yes.
PN1527
This is an example from Curtain University and the second page has tables that start - essentially one for each level, A, B, C, D, E. This first table is for academic staff teaching in research and it moves through to teaching focused. So if I can pick an example here: if we pick level C - - -?‑‑‑Yes.
PN1528
- - - for an academic staff member teaching and research; it appears that they build on the lower level?‑‑‑Yes.
PN1529
So as above - how do I determine the necessary work to meet the performance standards expected in this document?‑‑‑Well, if those were the performance expectations set - if they were set in those terms then an assessment would have to be made by the relevant supervisor as to whether meeting those performance standards could reasonably be met by level C employees in the relevant discipline area within a 38-hour week. They'd have to - - -
*** KEN MCALPINE XXN MR PILL
PN1530
So we sit down - - -?‑‑‑ - - and there would have to be an exercise of judgement.
PN1531
So we sit down in January and I discuss it with my colleague and I say - and I'm looking at research - "You need to show over the course of the next 12 months evidence of research leadership"?‑‑‑Yes.
PN1532
Well, how long does that take me?‑‑‑Well, it would be a question of making an assessment about the whole bundle of things, not about - there's no requirement that you assign a number of hours to each thing on that list.
PN1533
You appreciate there's a difference between the standards - and these are typical - that these standards and the activities that you actually do?‑‑‑Yes, yes, so for example - I was thinking about this the other day, thinking about my evidence: if for example at RMIT it caused a bit of media comment that there was level C there was a performance standard, if you like, which was to find a road map through ambiguity for others. Now, I admit that it might be pretty hard to say how many hours were involved in that. But I think that's a bit like saying to somebody that they should always be cheerful. It doesn't actually per se create a work requirement that can be reduced to hours. So I think a performance standard - performance standards can take various forms, some of which will have hours-like implications and others which won't. There's no inconsistency between that and what we've proposed.
PN1534
You accept that not only do they not determine the hours, they don't actually determine, other than in a very broad sense, what the activities are?‑‑‑That's right: they're not the work necessary to achieve any promotion expectations applicable to that employee. They're their indicative or behavioural standards. If one were only given those then I think it would be pretty hard to say that they exceeded 38 hours. If that's all you were given then I think it would be pretty safe to say that there is nothing in that that indicates that you couldn't do that in 38 hours.
PN1535
But under (b)(ii): "Required work includes any work necessary to meet performance standards expected"?‑‑‑Yes.
PN1536
This document, on its face, is performance expectations that require a level C to demonstrate evidence of research leadership, high-quality research creative work outputs?‑‑‑Yes.
PN1537
So other than identifying that I'm going to have to do something that involves research leadership, I'm going to have to do something that involves some research or creative work output?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1538
There's other dot points there. Other than providing a broad indication it doesn't actually determine the activities?‑‑‑No, it doesn't.
PN1539
Consequently, it tells us very little, if anything, about the amount of time - - -?‑‑‑It sets very - it fails to set performance standards of the type that would invoke the clause. That's the point.
PN1540
So you're now excluding from - so this attachment F, you're excluding from the coverage of (b)(ii) anything that is qualitative of this nature?‑‑‑Well, to be fair, I mean - I'd need to go through exactly what it was. I think in general terms these are standardised performance expectations. They will also usually have with them some type of specific work-related activity that's expected.
PN1541
Well, do you accept that - and I appreciate that you've now qualified your issues around promotion - but this is typically indicative of the short of language that we see in promotion policies, isn't it?‑‑‑Yes, yes.
PN1542
You demonstrate these things?‑‑‑That's right, and if that's all you have to do at Curtain, which I suspect is not the case - but if that's all you have to do at Curtain, if you're not actually given targets like actual numbers of publications, research income and other things, then I would say that again, depending upon the actual wording of these provisions, if they're couched entirely in sort of behavioural, indicative terms, then I don't think - it's not our intention that they would constitute anything that you couldn't say could be done reasonably within a 38-hour week.
PN1543
When you say, "behavioural indicative terms" - if I turn the page to (d), "Research and established records, substantial research income consistent with a national leader in the field of research" - - -?‑‑‑Yes.
PN1544
That's not a behavioural distinction?‑‑‑No, that's true and that's why I qualified what I said. I would be very surprised at Deakin - sorry, at Curtain - if there was not another set of documents underneath this that actually specified actual output requirements. These are - I could be proven otherwise - proven wrong about that, but I'd be very surprised if there weren't specific allocation-type documents sitting underneath this that were given to individual employees.
PN1545
Well, your evidence before was that not every university has or is required to have detailed performance expectation documents?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1546
You accept that there are actually a number of universities - indeed, many universities - that don't have publication metrics?‑‑‑There are a number, yes.
PN1547
Some do?‑‑‑Some do.
PN1548
I'll take you to one in a moment. You accept that the supervisor and his senior lecturer at level C could well have very different views about what's necessary in order to achieve the performance expectations that are set out in this document?‑‑‑They could, they could.
PN1549
Indeed, if I had two supervisors - - -?‑‑‑In both directions.
PN1550
You agree?‑‑‑I agree, yes.
PN1551
Indeed. Two supervisors might also have a different view?‑‑‑Yes, they might.
PN1552
They certainly might have a different view as to what amount of time would be - bear in mind that we don't really have any true guidance in the activities - that would be required to satisfactorily meet them?‑‑‑Yes, provided that there are in fact no allocations to actual employees as individuals at Curtain, which would supersede these.
PN1553
Yes. Could I take you to another document that you've included in these performance expectations and that's La Trobe document. I believe it's at 1031.
PN1554
VICE PRESIDENT CATANZARITI: 1031 is Macquarie University.
PN1555
MR PILL: I'm sorry, your Honour?‑‑‑I think we're looking at about 1018.
PN1556
Sorry, 1017?‑‑‑1017, yes.
PN1557
Thank you. Just take a moment: there's a document, "Future RE Academic Expectations"?‑‑‑Yes.
PN1558
On page - if I turn - if I look at the numbered pages on the bottom right, so the page numbers of the original document, pages 2 and 3 talk about expectations?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1559
You'll see, "Teaching delivery, curriculum development, teaching leadership." Number four: "Scholarship of teaching over to research." Now, again, this document in terms of shedding light on what's necessary to meet performance expectations, this document doesn't take us very far?‑‑‑No, I'm sure that the documents you need to reference would be the documents relating to an individual's performance expectations.
PN1560
Well, you'll see - sorry, perhaps I should put this to you before I ask you?‑‑‑Yes.
PN1561
If you see on pages 8 and 9 - - -?‑‑‑Yes.
PN1562
- - - there is some general guidance: for example, level D, associate professor: "Normally make an outstanding contribution to the research and scholarship, teaching, admin, including a large educational unit or interdisciplinary area; make an outstanding contribution to governance and collegial life inside and outside of the institution"?‑‑‑Yes.
PN1563
"Recognition at a national or international level?‑‑‑Yes, and I think that's taken from the award.
PN1564
Yes, it has elements of the so-called MSALs. You accept that in terms of determining what's necessary to achieve, the guidance in these performance expectations that again, there's a huge range of what activities might be required. You accept that?‑‑‑Yes, yes.
PN1565
Consequently, the hours that a reasonably competent academic in the discipline might take to meet the expectations set out in this document?‑‑‑If that was the only performance requirement I would be confident that it could be done in 38 hours a week average.
PN1566
Yes?‑‑‑I suspect very strongly again that the actual document given to individual employees at La Trobe isn't - they're not just given the MSAL and said, "Go and do your work."
PN1567
Mr McAlpine, you put this folder of documents to the Commission as a fair and representative sample of the policies and the main matters which they cover and you describe them as the standard academic performance expectation documents?‑‑‑Yes - the policies; they're not the performance expectation documents for 65,000 academic staff. They're the performance expectation policies.
*** KEN MCALPINE XXN MR PILL
PN1568
Yes?‑‑‑If I have misled the Commission in that respect, I apologise. They are the - I think it's fair to say they are documents under which performance expectations are actually set.
PN1569
Yes. Even if I go to a document that says I'll publish five papers in five years, in certain quality journals - - -?‑‑‑Yes.
PN1570
- - - other than that requires me to do activities that could lead to journal publication - - -?‑‑‑Yes.
PN1571
- - - it doesn't actually tell me anything about the activities that I will be undertaking?‑‑‑Well, it's - it tells you that it's research and that it's research leading to publications.
PN1572
Yes?‑‑‑And that that will occur within the context of a particular discipline.
PN1573
Yes?‑‑‑So we know that if you're a law academic at level C and you're expected to produce 10 publications in five years, then you've got a reasonable idea what's involved in that.
PN1574
Yes. Can I take you to Melbourne, which is at 1420? You have that?‑‑‑Yes.
PN1575
Just to be clear, mine here are unnumbered but my document starts with Melbourne School of Engineering on top left; is that right?
PN1576
VICE PRESIDENT CATANZARITI: Wait on, Mr Pill; 1420 is what you said, isn't it?
PN1577
MR PILL: I did.
PN1578
VICE PRESIDENT CATANZARITI: 1420 on my folder is the University of Canberra.
PN1579
MS GALE: I think you mean 1072.
PN1580
DEPUTY PRESIDENT KOVACIC: What was that number, Ms Gale? Sorry, I didn't quite catch it.
*** KEN MCALPINE XXN MR PILL
PN1581
MS GALE: Sorry: Melbourne starts in the late 1060s.
PN1582
MR PILL: Sorry, 1034, I'm sorry. So the document that is on that page starts with, "Growing esteem"?‑‑‑Sorry, what number?
PN1583
MS GALE: 1034?‑‑‑Thank you, sorry.
PN1584
MR PILL: So you've attached a number of University of Melbourne documents to start with, describing esteem document?‑‑‑Yes.
PN1585
Is that - given your evidence, is that part of performance expectations?‑‑‑I think it's more of a document related to performance expectations, setting out the university's overall objectives, some of which are relevant to performance expectations but I think it's fair to say it's only relevant.
PN1586
You can go through it?‑‑‑Yes.
PN1587
This is part of the University's so-called PDF: "Performance development framework"?‑‑‑Yes.
PN1588
The performance development framework and workload allocation are different concepts?‑‑‑They are different, yes.
PN1589
It's the case, isn't it, that a number of universities' processes and procedures for managing satisfactory and unsatisfactory performance are different and separate to the processes for academic workload allocation?‑‑‑Yes.
PN1590
That's generally the case when we look through the enterprise agreements: there is a separate clause for workload allocation and there is a whole scheme for dealing with performance management?‑‑‑Yes, that's true.
PN1591
Even if we ignore that for the moment - if you can turn to - I'm sorry, I'll just get the bench the relevant page: 1072, where you've got the School of Engineering, top left hand?‑‑‑Yes.
PN1592
Performance expectations level (a) to (e)?‑‑‑Yes, minimum performance expectations, yes.
*** KEN MCALPINE XXN MR PILL
PN1593
Yes. If I keep turning the pages and get to page 1082?‑‑‑Okay, yes.
PN1594
We see there we've got senior tutor/lecturer. The next page we've got lecturer level B, senior lecturer level C?‑‑‑Yes.
PN1595
So if I pick for example level B, lecturer - - -?‑‑‑Yes.
PN1596
- - - we see publications - five publications as a minimum over the last five-year period?‑‑‑Yes.
PN1597
"Must be published in leading publication outlets of the field." There's some details about grants, research income, supervision and contribution?‑‑‑Yes.
PN1598
So these are performance expectations under your clause?‑‑‑Yes, I think they are.
PN1599
Similarly, what appears in part B: teaching and learning and engagement; performance expectations?‑‑‑Well, teaching and learning - yes, they are performance expectations. They are also - there would also be specifically allocated work as well. But yes, they are performance expectations. It's not clear, the extent to which they give rise to work requirements. But they are performance expectations; they certainly are.
PN1600
Over the page, D, leadership service; E, ethics; F, (indistinct); NPHS?‑‑‑Yes.
PN1601
They're also performance expectations?‑‑‑Yes, they are performance expectations.
PN1602
Now, in terms of applying your clause and the concept of required work, required work includes any work necessary to achieve these expectations if they apply to me?‑‑‑Yes.
PN1603
Okay, and who determines what's necessary?‑‑‑Well, it's an objective test but who determines what the requirement is - the employer.
PN1604
My question is who determines what's necessary? Your definition of required work includes any work necessary to meet performance standards expected of the employee?‑‑‑As I said, it's an objective test. In the first instance the employer runs the business, so they decide. But it's an objective test.
*** KEN MCALPINE XXN MR PILL
PN1605
So to meet this goal of five over five years - - -?‑‑‑Yes.
PN1606
- - - in the 12-month period of account, how is it determined what the activities are that are necessary to achieve that expectation?‑‑‑I would say if you - assuming you used a one-year period of account rather than a two-year period of account you would say that it was adequate progress towards that outcome in a year. I think we can say with only a modicum of research, depending on what the discipline is, we can find out from peers what they consider to be a reasonable time allocation to do five publications over a five-year period at that level. That's not beyond modern science - and that we can say that we expect you to do a fifth of that in each of the years.
PN1607
So what if I've already got eight publications?‑‑‑Yes. If you've already got eight publications?
PN1608
Yes?‑‑‑Then there are no requirements.
PN1609
So any research work that I do that contributes to research publications then is not required work: is that - - -?‑‑‑It's not required work. If in this period of account you're not required to produce any more publications then it's not required - there isn't any required work. Now, the employer might say - not unreasonably the employer might bank the eight and say, "Well, thanks very much but now what we want you to do is - from now on we'd like you to continue that record. You can't rest on your laurels. You got eight out in two years so what we're now saying to you in the third year is actually we would like you to produce five in the next five years but if you've already met the requirement then there is no more required work within the meaning of the clause."
PN1610
So all the hours that I then do researching that year, they're not caught by your clause?‑‑‑No. If you do more work than is required, you don't get any entitlement under the clause.
PN1611
Right?‑‑‑It's the work - sorry.
PN1612
DEPUTY PRESIDENT KOVACIC: Can an employer also say, "Well, actually in those circumstances we want you to do more teaching"?‑‑‑Well, they might, in which case there would be more required work in that subsequent year, yes.
*** KEN MCALPINE XXN MR PILL
PN1613
To fill the gap?‑‑‑To fill the gap, yes. If my performance requirement is that I publish - that I produce three widgets and I produce five widgets in that year I can't turn around and say, "I want more money."
PN1614
MR PILL: I'll take a slightly different example and these aren't extreme hypotheticals?‑‑‑No.
PN1615
If I do a research project - - -?‑‑‑Yes.
PN1616
- - - and the standard - if I simplify the standard and say it's one publication a year - - -?‑‑‑Yes.
PN1617
- - - and I produce three publications out of that one research project, is all the time that I've spent on that project required work and hours that contribute to your clause?‑‑‑Well, remember the required work is set prospectively. It's not set by reference to how long it took you to do the job.
PN1618
Yes, all right. So we sit down, we say you're going to do some stem-cell research. That activity might lead to one publication. To that extent it's required work. To the extent it leads to four publications is it still required work?‑‑‑Well, the requirement was to do the work necessary to produce one publication.
PN1619
Well, so we need to undertake a prospective exercise of deciding what proportion of what I'm going to do contributes to that standard of one publication?‑‑‑To the extent that you set a performance requirement - you say we think that in - remember, the test is that you're in microbiology. We require you to produce one publication in the next year. What is a reasonable expectation of a person at level B in microbiology or in the biological sciences or however you want to say - what do we think is a reasonable expectation of how long it takes employees - not you - employees in this discipline at this classification to produce one publication in this discipline?
PN1620
With respect, the standard isn't the work. The clause requires you to make an assessment of time based upon the activity that's necessary - - -?‑‑‑Yes.
PN1621
- - - to achieve in this case a publication?‑‑‑Yes: how long employees in that classification in that discipline - how much required work, how much time would be necessary to do that task? It's not a measure of how long it takes you.
PN1622
Does it require the supervisor or the panel that's making this prospective judgement to look at the activities that the employees are going to undertake?‑‑‑The actual activities?
*** KEN MCALPINE XXN MR PILL
PN1623
What their project is?‑‑‑No, no. That's - as we made clear, that's not the purpose. It's how long it would take employees in that classification - a competent employee or competent employees in that classification in that discipline area to do the work necessary to meet that performance expectation. It's not about an examination of your research project.
PN1624
It's an examination of the work, isn't it?‑‑‑No, not - it's not an examination of the work required to do that research project, no.
PN1625
So the work necessary isn't the work that I'm doing?‑‑‑It's like it is for a whole lot of other things in agreements and in workload policies they say preparing a new lecture is worth five hours. Now, we know some people will take eight. We know in some subjects it'll take 10, in other subjects it'll take two. What we say is - - -
PN1626
We're not talking about (indistinct) here, Mr McAlpine?‑‑‑No, no, no, but the same principle applies.
PN1627
We're talking about the work to produce five publications over five years?‑‑‑Yes, in that discipline at that level.
PN1628
At that level and I need to make an assessment of the work necessary of that particular employee to achieve - to meet those performance standards?‑‑‑Yes, required work but then it's referable to the ordinary hours workload.
PN1629
Well, which in turn says: "The maximum ordinary hours worked for an academic employee should be an average of 38 over the relevant period of account for this purpose in addition to any required work." So I take it that necessarily the main issue for determining the ordinary hours workload is to look at the required work for that particular employee?‑‑‑No, the amount of required work such that employees at the relevant academic level and discipline could with confidence be expected to perform that work in a competent and professional manner.
PN1630
I'll come back to that. I'm looking at 22.2 - - -?‑‑‑Yes.
PN1631
- - - which in your submissions, written submissions, you say is the only operative provision in the clause. We'll make submissions about that. But this defines maximum ordinary hours workload to be an average of 38 hours per week over the relevant period of account for this purpose in addition to any required work performed on those days?‑‑‑Yes.
*** KEN MCALPINE XXN MR PILL
PN1632
So you concede that in determining the maximum ordinary hours of work we're looking at what the required work is of the academic employee?‑‑‑In that clause, yes, and then it goes on to say various other things that modify the operation of that.
PN1633
All right, well, I'll come back to that. Do you accept that before it's measured, monitored, ascertained, allocated - whatever the clauses are in your clause - - -?‑‑‑Yes.
PN1634
- - - that there is significant scope for argument as to what activities are actually required to be considered as necessary to achieve - to meet the performance standards expected of the employee?‑‑‑Sorry, could you just repeat that question? I apologise.
PN1635
Before we even get to whether it's measured, monitored, ascertained or assessed, you accept there is significant scope for argument as to what the activities are that are actually required to be considered within this concept of required work?‑‑‑Well, there is scope for disagreement, yes; there is scope for disagreement.
PN1636
Now, in the ordinary hours workload concept in your clause - - -?‑‑‑Yes.
PN1637
- - - you do look to that particular employee and you look to the required work of that particular employee. You accept that?‑‑‑Ordinary hours workload for an employee, yes - - -
PN1638
Yes?‑‑‑ - - means that amount of required work such that employees at the relevant academic level and discipline could with confidence be expected to perform that required work in a competent and professional manner within 38 hours per week.
PN1639
So we look to the particular work that that employee is doing?‑‑‑In the - yes, as expressed in the performance standards or whatever it is that's - yes, yes. So you describe the - you say the publications, yes. You look at the publications and you say, "How long would it take to do five publications?"
PN1640
Now, in terms of the reference to 22.5, number of hours per week which employee at the relevant academic level and discipline could with confidence be expected to perform; does that mean it's a conservative estimate?‑‑‑Conservative meaning what; a low number of hours?
*** KEN MCALPINE XXN MR PILL
PN1641
What does, "with confidence", mean in that context?‑‑‑With some basis - with some confidence that you hadn't just picked the figure out of the air.
PN1642
Right, so with some confidence?‑‑‑Yes - I mean, we in looking at this thought it's ultimately a question for the Commission to decide, if they wanted to go down this path to draw that - you could say with confidence, with reasonable confidence, with - you know, different words will mean slightly different things. We've chosen, "with confidence."
PN1643
So whose confidence is it?‑‑‑It's an objective test.
PN1644
Someone has to apply this clause?‑‑‑Yes, yes.
PN1645
So who's making the judgement? Is it the supervisor? Is it the head of school? Is it - - -?‑‑‑Well, presumably the same people who currently under the enterprise agreements decide whether workload is fair and equitable. It's an objective test.
PN1646
In terms of 22.5 - I've asked you this - we look at the required work as allocated to the employee, notwithstanding that language - - -?‑‑‑Yes.
PN1647
- - - it basically includes anything that's necessary to meet the performance expectations, whether it's specifically allocated to the employee or not?‑‑‑Whether it's specifically allocated work or required to meet the performance expectations, yes. I think that's right.
PN1648
Do you accept that if we asked three academics in a discipline area we could well get three different answers as to what a competent academic would do and how long it would take them to perform the activities to meet these broad performance expectations across five years?‑‑‑Well, if that's all you did you would probably get a different result. But if you're running a $1 billion business, I would imagine that for some infinitesimally small percentage of their operating budget you could establish some reasonably scientific basis to establish what those figures were so that you could decide that with confidence.
*** KEN MCALPINE XXN MR PILL
PN1649
I'm not talking about the costs now. I'm talking about the fact that we've got multiple academics in the same discipline being asked to make a judgement, whether as a participant in this process or as a supervisor in this process, as to what a competent academic would take in terms of time to perform the activities that the staff member is intending to undertake?‑‑‑Yes, I think that's - if you just ask three academics, depending whether you ask them in the one room or in three rooms or what, you would get three different answers. I'm sure of that. I've asked people how long it takes to supervise a PHD student in a year and I get different answers from different people so I would need to establish some process if I was going to make a decision about that so that I could do that with confidence.
PN1650
It's not a generic process, is it? It's one that you have to apply to that particular staff member and the particular staff member's activities that they're intending to undertake?‑‑‑No, I don't think so. I think it's that the performance requirements can be expressed generically.
PN1651
Mr McAlpine, I've got to produce five articles over five years?‑‑‑Yes.
PN1652
At least you need to make some assessment as to whether I'm intending to produce an article in that year?‑‑‑Yes, and that thing that has to be tested is the production of an article by a person at that level in not that article but - - -
PN1653
In my example we're not now talking about allocated activities: we're talking about activities that aren't specifically allocated?‑‑‑Yes, we're talking about performance - - -
PN1654
An assessment as to what is necessary to meet these performance expectations that I've taken you to?‑‑‑Yes, and I don't think it's beyond the capacity of an organisation like a university to make an assessment of how long it takes to produce an article.
PN1655
Well, this process that you're setting up here and this construct would lead to resistance and disputation about any identified number of hours?‑‑‑Well, just as the - to be fair to your point, just as the existing EV clauses do from time to time to the same extent our existing enterprise agreement clauses - sorry, the workload policies established under those specify so much under this, so much for supervising a PHD, for example. Now, people might disagree with that but they accept that a reasonable assessment has been made.
PN1656
Mr McAlpine, under those clauses you actually look at the particular activities of the individual. You look at whether it's a 500-plus-hour research project and you into account all of those matters in assessing the particular individual's workload?‑‑‑No - many of the workload policies say supervision of a PHD student, 60 hours.
PN1657
If we move to research, you accept the proposition I put to you?‑‑‑Sorry, what? I can't see why the same principle doesn't apply.
*** KEN MCALPINE XXN MR PILL
PN1658
Because if I've understood your evidence, under your clause you don't actually look at the activities they're going to be undertaking?‑‑‑That's right.
PN1659
You only look at the output and attach a notional number of hours to it?‑‑‑That's correct. That's one way in which the employer can comply with the clause, yes. Another way would be to attach a certain number of hours to it.
PN1660
Now, in terms of producing a research paper, there will be evidence given by senior academics who do administer the current clauses that you would get varying responses. Some would say it will take two weeks and others would say, no, a competent academic would take four months?‑‑‑Yes.
PN1661
You accept that's a real possibility?‑‑‑Yes, in the absence of anybody having done any - attempted to establish it scientifically, I understand people would have different estimates.
PN1662
Yes. Now, this is a prospective estimate that's done?‑‑‑Yes.
PN1663
So presumably before the start of the calendar year?‑‑‑Yes.
PN1664
Can I take you to 22.7; so 14 days before the commencement of the period of account, we decide whether this overtime loading is payable?‑‑‑Yes.
PN1665
Then it says: "An employee is only entitled to an overtime loading in respect of days actually worked"?‑‑‑Yes.
PN1666
So can you explain what that clause requires?‑‑‑You mean that specific provision?
PN1667
That specific part?‑‑‑If I go on three months' long-service leave I don't get the overtime loading for those three months.
PN1668
All right. Is there any assessment as to whether I'm working on any particular day outside of approved leave?‑‑‑Outside of approved leave? No, you're assumed to be at work if you're not on leave.
PN1669
So if I don't happen to do any work on the Friday - - -?‑‑‑No, that's right.
PN1670
- - - do I get the overtime payment?‑‑‑Yes, you do.
*** KEN MCALPINE XXN MR PILL
PN1671
So days actually worked doesn't actually mean, "actually worked?" It means days on which - - -?‑‑‑Fair enough - I think it would be well understood you're at work if you're not on leave, if you're an academic, precisely for all the reasons you canvassed this morning.
PN1672
So then we go down to: "The employer shall be entitled to reduce or withdraw the overtime loading where required work does not in fact justify the overtime loading as advised to the employee"?‑‑‑Yes.
PN1673
"And must increase the overtime loading in accordance with the clause if the employer increases the amount of required work beyond that which is advised to the employee." Now, just taking that in turn: so having set it up at the start of the year is there some element of monitoring or reporting back required from the academic if I've decided no longer to pursue that particular research or I've decided to pick up some additional editorial board responsibilities and my employer is prepared to allow that to happen? How does this part of the clause operate?‑‑‑Well, they're two different types of questions. If I decided to pick up some extra editorial board work, then that wouldn't give any rise to any entitlement on the employee because it wasn't part of your required work. Your other example would have to be in the hands of the employer because it's the employer that sets required work. So if was supposed to teach 12 hours a week during second semester and then one of my colleagues was sick and I now had to teach 16 hours during second semester, then, depending on how it worked, then that would be additional required work.
PN1674
So how does it apply to research?‑‑‑If you changed or increased my performance expectations - so you suddenly said halfway through the year, "We want you to produce two journal articles", or, "We want you to get $200,000 worth of research income", I don't think that's - that doesn't generally happen, I have to say. But if your performance expectations were suddenly jacked up halfway through the year for that year, then that might give rise to some entitlement.
PN1675
A more likely scenario might be that I'm an academic, I'm working towards some research publication - - -?‑‑‑Yes.
PN1676
- - - and I decide that I'm not going to publish them this year, I'm going to publish them in future years?‑‑‑Yes.
PN1677
Does my overtime get - loading get withdrawn?‑‑‑No, I don't think it does.
*** KEN MCALPINE XXN MR PILL
PN1678
You'd accept that at least as a matter of process for this clause to operate there needs to be some form of continuing assessment across the period of account as to whether the required work - and that includes necessary to achieve performance expectations - needs to be assessed in some way?‑‑‑What needs to be assessed is what the requirements are that are given to the employee. Now, if an employee has a workload requirement which is to produce five articles in a year, they may get - they may be entitled to an overtime allowance. But if, for example, they said halfway through the year, "I'm not going to get that done", and their requirement was reduced, then so would their allowance.
PN1679
Now, do you accept that under the clause - if I'm an efficient academic staff member - - -?‑‑‑Yes.
PN1680
- - - particularly efficient - and I perform the required work with all of the difficulties that that brings, if I perform the required work and I do it in an average of less than 38 hours across the period of account - - -?‑‑‑Yes.
PN1681
- - - I still get my overtime loading; is that right?‑‑‑If you had an overtime - if you had a work allocation that was higher than 38 hours, you mean?
PN1682
Yes, so we determine it at the start of the year - - -?‑‑‑Yes.
PN1683
- - - we say, "Stewart, you're actually going to produce five publications this year. That means we're going to give you a big loading." My research project comes to fruition. I get five publications out of the one project. I haven't worked in excess of 38 hours across the year. But I still receive - - -?‑‑‑You would still - it is a swings-and-roundabouts and the opposite could apply.
PN1684
So the clause - whilst we've used the shorthand, "overtime", the clause essentially provides for additional payments and indeed may not provide for additional payments irrespective of the hours that I work?‑‑‑Irrespective of the actual hours that you work, yes.
PN1685
Yes?‑‑‑Yes, recognising - as I think we've established - that most academics do lots of additional work above their required work. But, yes, the point you make is fair enough.
PN1686
Yes, and perhaps I'll use that to segue to 22.8. This clause makes that distinction between productive, self-directed work and required work?‑‑‑Well, productive, self-directed work - that is not part of required work.
*** KEN MCALPINE XXN MR PILL
PN1687
Yes, which is not required work so requires that distinction?‑‑‑Yes.
PN1688
You accept that can sometimes be a very difficult judgement?‑‑‑What's a difficult judgement?
PN1689
To distinguish between whether a particular activity that I'm doing is self-directed work or is required work under the clause?‑‑‑Well, sorry: the distinction is not between self-directed work and required work. Much required work is self-directed.
PN1690
Well, I'm using the language of the clause, Mr McAlpine?‑‑‑Yes, that's right, and to be described by the first sentence in 22.8, it has to be productive, self-directed work and not required work.
PN1691
Yes?‑‑‑Right? So it has to be both those things: it has to be not work that's required by your employer but nevertheless, productive, self-directed work. But as said, it is in the nature of a recital: the operative sentence is the next sentence and I would acknowledge that the recital seems to have caused more confusion that it has resolved.
PN1692
VICE PRESIDENT CATANZARITI: Mr Pill, I thought Ms Gale or Mr McAlpine indicated that clause 22.8 might be amended or deleted.
PN1693
MR PILL: Well - - -?‑‑‑The first sentence, your Honour.
PN1694
Only the first sentence, which you described as a recital.
PN1695
VICE PRESIDENT CATANZARITI: Ms Gale, is there any reason why we can't get this done faster next week, because you are cross-examining Mr McAlpine at the moment and a lot of time may be spent on matters that may not actually appear in the final version of this clause.
PN1696
MS GALE: Your Honour, I will endeavour to get it prepared for tomorrow morning.
VICE PRESIDENT CATANZARITI: Yes, I think on that basis, Mr Pill, we might adjourn for today because I think - I'd like to see whether this clause actually emerges overnight. Commission is adjourned.
<THE WITNESS WITHDREW [3.48 PM]
*** KEN MCALPINE XXN MR PILL
ADJOURNED INDEFINITELY [3.48 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
KEN MCALPINE, AFFIRMED......................................................................... PN940
EXAMINATION-IN-CHIEF BY MS GALE..................................................... PN940
EXHIBIT #G STATEMENT 1 OF KEN MCALPINE DATED 11/03/16...... PN954
EXHIBIT #H STATEMENT 2 OF KEN MCALPINE DATED 03/06/16...... PN967
EXHIBIT #I STATEMENT 3 OF KEN MCALPINE DATED 11/07/16........ PN971
CROSS-EXAMINATION BY MR PILL........................................................... PN974
EXHIBIT #7 LETTER FROM NTEU UNSW BRANCH TO UNIVERSITY OF NEW SOUTH WALES................................................................................................................. PN1035
EXHIBIT #8 EXTRACT FROM UNSW (ACADEMIC STAFF) ENTERPRISE AGREEMENT 2014....................................................................................................................... PN1035
THE WITNESS WITHDREW.......................................................................... PN1120
KEN MCALPINE, RECALLED...................................................................... PN1120
CROSS-EXAMINATION BY MR PILL, CONTINUING............................ PN1120
THE WITNESS WITHDREW.......................................................................... PN1324
KEN MCALPINE, RECALLED...................................................................... PN1326
CROSS-EXAMINATION BY MR PILL, CONTINUING............................ PN1326
THE WITNESS WITHDREW.......................................................................... PN1697