National Tertiary Education Industry Union v University of Sydney

• Jurisdiction: Australia Federal only
• Judgment Date: 31 August 2021
• Neutral Citation: [2021] FCAFC 159
• Date: 31 August 2021
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159

Appeal from:	National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709
File number(s):	NSD 1373 of 2020
Judgment of:	ALLSOP CJ, JAGOT AND RANGIAH JJ
Date of judgment:	31 August 2021
Catchwords:	INDUSTRIAL LAW – university – right of intellectual freedom – whether primary judge erred in construction of right of intellectual freedom in enterprise agreement – whether primary judge erred in finding that exercise of intellectual freedom can constitute “misconduct” or “serious misconduct” within meaning of enterprise agreement – whether conduct in posting photo to social media was sufficiently connected to his employment to constitute “misconduct” – whether University gave lawful and reasonable instruction to remove photo – whether failing to remove photo constituted “misconduct” – appeal allowed – matters remitted to primary judge for hearing and determination.
Legislation:	Fair Work Act 2009 (Cth) ss 50, 340, 539, 545
Cases cited:	Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Downer EDI Limited v Gillies [2012] NSWCA 333; (2012) 92 ACSR 373 Eldridge v Wagga Wagga City Council [2021] NSWSC 312 James Cook University v Ridd [2020] FCAFC 123; (2020) 382 ALR 8 Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578 Mercer v Whall (1845) 5 QB 447 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272 Ridgway v Hungerford Market Company (1835) 3 AD & E 171 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177; (2009) 74 NSWLR 618
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	292
Date of hearing:	12 July 2021
Date of last submissions:	19 July 2021
Counsel for the Appellants:	Mr B Walker SC with Ms S Kelly
Solicitor for the Appellants:	National Tertiary Education Industry Union
Counsel for the Respondent:	Ms K Eastman SC with Mr D Lloyd
Solicitor for the Respondent:	Ashurst Australia

ORDERS

		NSD 1373 of 2020
BETWEEN:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Appellant TIM ANDERSON Second Appellant
AND:	UNIVERSITY OF SYDNEY Respondent

order made by:	ALLSOP CJ, JAGOT AND RANGIAH JJ
DATE OF ORDER:	31 AUGUST 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Order 1 made on 26 November 2020 be set aside.

3. The matter be remitted to the primary judge on terms to be decided.

4. The parties may file and serve written submissions not exceeding 10 pages identifying their proposed issues for the remittal and any amendment to the pleadings requested, and reasons in support, within 14 days of the date of these orders.

5. If any party files and serves written submissions in accordance with order 4, the other parties may file and serve written submissions in reply not exceeding 10 pages within a further seven days thereafter.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1 I have read the reasons for judgment of Jagot J and Rangiah J. I agree with the orders proposed by their Honours. Their Honours’ detailed recounting of the facts and circumstances of the matter below and on appeal, which I gratefully adopt, permits me to express my reasons shortly.

2 I agree with the reasons of Jagot J and Rangiah J in relation to the “lunch photo”. The conduct in relation to this was not asserted to be an exercise of intellectual freedom. Whilst it can be accepted that many features of world affairs give rise to contradictory and sometimes mutually hostile opinions, the apparently deliberate posting on Facebook of a photograph of a badge on the arm of a colleague on a social occasion that said “Death to Israel” and “Curse the Jews” can be characterised as anti-Semitic. I agree with Jagot J and Rangiah J that the refusal to take down the post can be characterised as Misconduct if the removal direction was lawful and reasonable. Whether posting the lunch photo was Misconduct or Serious Misconduct and if so, whether failing to remove the photo was Serious Misconduct is a question (for the reasons given by Jagot J and Rangiah J) that should be remitted to the primary judge, to be assessed in the light of all the circumstances.

3 I turn to the balance of the controversy. Subject to what follows, I agree with the reasons of Jagot J and Rangiah J.

4 Central to resolution of the controversy is the proper construction and ascription of meaning and content to cll 315–317 of the 2018 Enterprise Agreement (in relevant respects identical to cll 254–256 of the 2013 Enterprise Agreement).

5 The provisions deal with a central feature of university and academic life; indeed the subject, intellectual freedom, goes to the heart of the nature and character of the institution of the university itself.

6 The three clauses naturally fit together and are to be construed in the context of each other, and in the context of the whole of the Agreement. Clause 315, in terms, recognises the rights which are part of the concept of intellectual freedom to the protection and promotion of which concept, and which rights, the parties expressly state their commitment. These are not on their face words of mere aspiration. They are words of commitment. That the parties are committed, is not in its context a mere description of their respective views; it is the expression of a commitment that they make, to each other. The freedom (to whose protection and promotion the parties express their commitment) is not apt for exhaustive definition, but it is apt for non-exhaustive description or identification of relevant conduct – a process undertaken by the parties in their inclusive list of rights in subcll (a) and (b)(i)–(iv). Those rights were stated to be part of the freedom. That the freedom is difficult or impossible to define exhaustively is no reason to diminish the clarity with which the Agreement expresses the nature of the rights. Rights to the protection and promotion of which the parties express their commitment is naturally the expression not of aspiration, but of obligation. The terms of cl 315 are apt to mean that the parties commit themselves to the contents of the clause, including the protection and promotion of the expressed rights. The Agreement is to be the basis of the relationship between the parties for its term. The words “are committed” should not be understood as speaking only as at 12 December 2017 when the Agreement was signed. The present tense should be seen as continuous and the commitment as ongoing and real. There does not need to be a separate promise to maintain the commitment made on 12 December 2017 into the future. Even if one did look at it in that restricted temporal fashion, the clause still is an express recognition of the rights set out, which the staff enjoy: such should be construed as legal rights that staff are free to exercise. The recognition of the rights is to be understood...