National Tertiary Education Industry Union v University of Sydney [2022] FCA 1265

National Tertiary Education Industry Union v University of Sydney [2022] FCA 1265

Each of the First, Second, Third, Fourth and Fifth Comments constituted an exercise of intellectual freedom within the applicable enterprise agreement provisions. The comments were sufficiently connected with Dr Anderson's research, public debate, opinions about University operations, or assertion of intellectual freedom, and the University did not establish harassment, vilification, intimidation or breach of a relevant standard. Because the First Warning, Final Warning and termination were imposed at least in part because of protected exercises of intellectual freedom, the University breached the 2013 and 2018 Agreement provisions and contravened s 50 of the Fair Work Act 2009 (Cth). The...

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Industrial Law Proceeding Alleging Contraventions of S 50 of the Fair Work Act 2009 (cth) / On Remittal From National Tertiary Education Industry Union V University of Sydney [2021] FCAFC 159 for Further Hearing and Determination
Outcome
Contraventions established; parties directed to confer on appropriate orders and further conduct of the proceeding.
Legal Topics
['enterprise Agreement' 'intellectual Freedom' 'academic Freedom' 'misconduct and Serious Misconduct' 'termination of Employment' 'accessorial Liability']
['industrial Law' 'employment and Industrial Relations'] ['enterprise Agreement' 'intellectual Freedom' 'academic Freedom' 'misconduct and Serious Misconduct' 'termination of Employment' 'accessorial Liability']

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Procedural Posture

Industrial Law Proceeding Alleging Contraventions of S 50 of the Fair Work Act 2009 (cth) / On Remittal From National Tertiary Education Industry Union V University of Sydney [2021] FCAFC 159 for Further Hearing and Determination

Legal Issues

  1. 1 ['Whether any of the First, Second, Third, Fourth or Fifth Comments constituted the exercise of the right to intellectual freedom under cll 315 to 317 of the 2018 Agreement or cll 254 to 256 of the 2013 Agreement.' 'Whether the First Warning, Final Warning and termination were imposed in whole or in part because of conduct constituting the exercise of intellectual freedom.' 'Whether the Fifth Comments could constitute serious misconduct justifying termination.' "Whether Professor Garton was involved in the University's contraventions as an accessory under s 550 of the Fair Work Act 2009 (Cth)."]

Ratio Decidendi

Each of the First, Second, Third, Fourth and Fifth Comments constituted an exercise of intellectual freedom within the applicable enterprise agreement provisions. The comments were sufficiently connected with Dr Anderson's research, public debate, opinions about University operations, or assertion of intellectual freedom, and the University did not establish harassment, vilification, intimidation or breach of a relevant standard. Because the First Warning, Final Warning and termination were imposed at least in part because of protected exercises of intellectual freedom, the University breached the 2013 and 2018 Agreement provisions and contravened s 50 of the Fair Work Act 2009 (Cth). The...

Court Disposition

Contraventions established; parties directed to confer on appropriate orders and further conduct of the proceeding.

Orders

  • ['The parties confer with a view to agreeing appropriate orders to give effect to these reasons and as to the further conduct of the proceeding within 7 days.']