National Tertiary Education Industry Union v University of Sydney

• Jurisdiction: Australia Federal only
• Judgment Date: 26 November 2020
• Neutral Citation: [2020] FCA 1709
• Court: Federal Court
• Date: 26 November 2020

Federal Court of Australia

National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709

File number:	NSD 553 of 2019
Judgment of:	THAWLEY J
Date of judgment:	26 November 2020
Catchwords:	INDUSTRIAL LAW – alleged contraventions of s 50 of the Fair Work Act 2009 (Cth) – whether Enterprise Agreement created enforceable right to intellectual freedom – whether applicant’s conduct was an exercise of intellectual freedom – whether applicant’s conduct was misconduct or serious misconduct within the meaning of the Enterprise Agreement – alleged contraventions not made out ; INDUSTRIAL LAW – alleged contraventions of s 340 of the Fair Work Act 2009 (Cth) – whether the applicant exercised a “workplace right” to make a complaint or complaints – whether the University took adverse action because of the exercise of a workplace right – alleged contraventions not made out
Legislation:	Defamation Act 2005 (NSW) Fair Work Act 2009 (Cth) ss 50, 340, 341, 342, 360, 361, 539, 550 Higher Education Support Act 2003 (Cth) s 2-1 Tertiary Education Quality and Standards Agency Act 2011 (Cth) ss 21, 58, 105 University of Sydney Act 1989 (NSW) s 4 ; Higher Education Standards Framework (NSW) para B1.1.2
Cases cited:	Australian Rail, Tram & Bus Industry Union v KDR Victoria Pty Ltd (t/as Yarra Trams) [2014] FCAFC 24 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 Blatch v Archer (1774) 1 Cowp 63 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Burns v Australian National University (1982) 61 FLR 76 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 282 IR 86 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu (2019) 289 IR 240 James Cook University v Ridd (2020) 382 ALR 8 National Tertiary Education Union v La Trobe University (2015) 254 IR 238 Perez v Northern Territory Department of Correctional Services [2016] FCA 476 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Rangi v Kmart Australia Ltd [2019] FCA 1778 Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 375 ALR 453 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 Short v Ambulance Victoria (2015) 249 IR 217 Tattsbet Ltd v Morrow (2015) 233 FCR 46 The Environmental Group Ltd v Bowd (2019) 288 IR 396 Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152 Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441 WorkPac Pty Ltd v Skene (2018) 264 FCR 536
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	290
Date of hearing:	19-23 October 2020
Counsel for the Applicants:	S Kelly
Solicitor for the Applicants:	National Tertiary Education Union
Counsel for the Respondents:	K Eastman SC with Y Shariff SC
Solicitor for the Respondents:	Ashurst

ORDERS

		NSD 553 of 2019
BETWEEN:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Applicant ; TIM ANDERSON Second Applicant
AND:	UNIVERSITY OF SYDNEY First Respondent ; STEPHEN GARTON Second Respondent ; ANNAMARIE JAGOSE Third Respondent

order made by:	THAWLEY J
DATE OF ORDER:	26 November 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

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

REASONS FOR JUDGMENT

A OVERVIEW	[1]
B FACTUAL BACKGROUND	[8]
B.1 Dr Anderson	[8]
B.2 Professor Garton and Professor Jagose	[14]
B.3 University Policies	[16]
B.4 Events leading to the “First Allegations” made on 30 May 2017	[17]
B.4 30 May 2017: First Allegations	[21]
B.5 Dr Anderson’s reaction to the 30 May 2017 allegations	[24]
B.6 26 June 2017: Second Allegations	[31]
B.7 2 August 2017: First Warning	[36]
B.8 Events leading up to the Third Allegations	[39]
B.9 10 August 2018: Third Allegations	[51]
B.10 15 to 24 August 2018: Dr Anderson’s bullying complaint and Sydney Morning Herald article	[53]
B.11 September 2018: Defamation Act 2005 (NSW) concerns notice and response	[63]
B.12 8 October 2018: Outcome of bullying complaint	[65]
B.13 19 October 2018: Final Warning	[68]
B.14 26 October 2018: Fourth Allegations	[79]
B.15 December 2018: Suspension of Employment	[88]
B.16 Review Committee	[90]
B.17 Termination of Employment	[91]
C RELEVANT ENTERPRISE AGREEMENTS, CODES OF CONDUCT AND POLICIES	[93]
C.1 The Enterprise Agreements	[93]
C.2 Codes of Conduct	[99]
C.3 Public Comment Policy	[100]
D INTELLECTUAL FREEDOM	[101]
D.1 The applicants’ contentions	[101]
D.2 The respondents’ contentions	[111]
D.3 The significance of the decision in Ridd	[115]
D.4 Relevant principles of construction	[122]
D.5 Consideration	[126]
E THE COURT’S ROLE IN RELATION TO BREACH OF CLAUSE 384	[142]
F...