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

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

The Full Court held that cl 315 of the 2018 agreement does confer enforceable rights of intellectual freedom, qualified by cl 317 (requiring exercise in accordance with highest ethical, professional and legal standards), and that conduct properly constituting the exercise of those rights cannot be misconduct or serious misconduct. The primary judge erred in not making objective findings as to whether the impugned conduct was such an exercise and in treating the question of misconduct as one for reasonable satisfaction of the University's delegate rather than the court. The construction and application of cll 315-317 and the role of the Code of Conduct required remittal for proper...

Parties
First Appellant: National Tertiary Education Industry Union; Second Appellant: Tim Anderson; Respondent: University of Sydney
Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed. Orders of primary judge set aside. Matter remitted for rehearing on specified terms.
Legal Topics
Intellectual Freedom, Enterprise Agreement Interpretation, Misconduct and Serious Misconduct, Academic Freedom, Employment Termination, Code of Conduct, Remittal
Industrial Law Employment Law Intellectual Freedom Enterprise Agreement Interpretation Misconduct and Serious Misconduct Academic Freedom Employment Termination Code of Conduct +1 more

Case Brief

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Parties

National Tertiary Education Industry Union

First Appellant

Tim Anderson

Second Appellant

University of Sydney

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the enterprise agreement confers an enforceable right of intellectual freedom.
  2. 2 Whether exercise of intellectual freedom can constitute "misconduct" or "serious misconduct" within the meaning of the agreement.
  3. 3 Whether posting the lunch photo was sufficiently connected to employment to constitute misconduct.

Ratio Decidendi

The Full Court held that cl 315 of the 2018 agreement does confer enforceable rights of intellectual freedom, qualified by cl 317 (requiring exercise in accordance with highest ethical, professional and legal standards), and that conduct properly constituting the exercise of those rights cannot be misconduct or serious misconduct. The primary judge erred in not making objective findings as to whether the impugned conduct was such an exercise and in treating the question of misconduct as one for reasonable satisfaction of the University's delegate rather than the court. The construction and application of cll 315-317 and the role of the Code of Conduct required remittal for proper...

Court Disposition

Appeal allowed. Orders of primary judge set aside. Matter remitted for rehearing on specified terms.

Orders

  • The appeal be allowed.
  • Order 1 made on 26 November 2020 be set aside.