James Cook University v Ridd
[2020] FCAFC 123
•22 July 2020
FEDERAL COURT OF AUSTRALIA
James Cook University v Ridd [2020] FCAFC 123
Appeal from: Ridd v James Cook University [2019] FCCA 997
Ridd v James Cook University (No 2) [2019] FCCA 2489File number: QUD 567 of 2019 Judges: GRIFFITHS, RANGIAH AND SC DERRINGTON JJ Date of judgment: 22 July 2020 Catchwords: INDUSTRIAL LAW – interpretation of Enterprise Agreement – whether Code of Conduct incorporated – whether disciplinary action taken for breaches of Code of Conduct contravened Enterprise Agreement – meaning and effect of cl 14 of Enterprise Agreement relating to Intellectual Freedom – relationship between cl 14 and Code of Conduct
INDUSTRIAL LAW – interpretation of Enterprise Agreement – extent of obligations of confidentiality on parties involved in disciplinary processes – whether directions given pursuant to Enterprise Agreement and/or employer’s common law right breached Enterprise Agreement
INDUSTRIAL LAW – appeal from penalty judgment – Fair Work Act 2009 (Cth) s 557 – whether primary judge erred in rejecting contention there was a single course of conduct
DAMAGES – assessment of general damages – whether error shown in trial judge’s assessment – whether compensation order under s 545(2) can include component for shock, distress, hurt or humiliation
PRACTICE AND PROCEDURE – whether proceedings should be remitted to Federal Circuit Court for new hearing – where issue not in dispute at trial – where party bound by way matter conducted at trial
PRACTICE AND PROCEDURE – interveners – whether leave should be granted
Legislation: Constitution s 109
Acts Interpretation Act 1901 (Cth) s 46AA
Australian National University Act 1946 (Cth)
Australian National University Act 1991 (Cth)
Fair Work Act 2009 (Cth) ss 3(e), 12, 29, 50, 51, 52, 53, 54, 172(1), 172(2), 186, 257, 340, 346, 392(4), 545(1)-(2), 557
Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 28(1)
Legislation Act 2003 (Cth) s 8
Fair Work Regulations 2009 (Cth) reg 1.07
Federal Court Rules 2011 (Cth) rr 36.32, 36.57
Crime and Misconduct Act 2001 (Qld) ss 15, 38
James Cook University Act 1997 (Qld) ss 4, 5, 7, 8
Public Sector Ethics Act 1994 (Qld) ss 10, 15, 16, 17, 18, 24(c)
Cases cited: Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
Ah Toy v Registrar of Companies (1985) 10 FCR 280
Aldi Foods Pty Ltd v Morrocanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301
Allesch v Maunz [2000] HCA 40; 203 CLR 172
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157
Australian Industry Group v Fair Work Australia [2012] FCAFC 108; 205 FCR 339
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526
Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175
Australian National University v Burns (1982) 64 FLR 166
Australian Rail, Tram & Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2014] FCAFC 24
Bailey v Nominal Defendant [2004] QCA 344
Banque Commercial SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279
Burns v Australian National University (1982) 61 FCR 76
Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362
Coleman v Power [2004] HCA 39; 220 CLR 1
Commissioner of Taxation v Scone Race Club Ltd [2019] FCAFC 225; 374 ALR 189
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1
Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Director of Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd [2010] FCAFC 135; 273 ALR 696
Ex parte McLean [1930] HCA 12; 43 CLR 472
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69
Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499
George A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498
Hancock Prospecting Pty Ltd v Reinhart [2017] FCAFC 170; 257 FCR 442
Harmer v Oracle Corporation Australia Pty Limited [2013] FCAFC 63; 299 ALR 236
Holdway v Arcuri Lawyers (A Firm) [2008] QCA 218; [2009] 2 Qd R 18
House v The King [1936] HCA 40; 55 CLR 499
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 3; 244 CLR 508
Kucks v CSR Limited [1996] 66 IR 182
Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1
National Tertiary Education Union v La Trobe University [2015] FCAFC 142; 254 IR 238
O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310
Optical 88 Ltd v Optical 88 Pty Ltd [2011] FCAFC 130; 197 FCR 67
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39
Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime and Energy Union [2019] FCA 1647
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v The Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44; 60 CLR 601
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334
Ridd v James Cook University (No 2) [2019] FCCA 2489
Ridd v James Cook University [2019] FCCA 997
Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550
Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227; 256 FCR 1
Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67
Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511
Soliman v University of Technology, Sydney [2009] FCAFC 159
Stewart v Biodiesel Producers Limited [2008] FCAFC 66
SZRPT v Minister for Immigration and Border Protection [2014] FCA 24
Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152
Transport Workers’ Union of Australia, New South Wales Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982
University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481
Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; 149 CLR 672
WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536
Date of hearing: 26 and 27 May 2020 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 294 Counsel for the Appellant: Mr B Walker SC with Mr Y Shariff and Ms V Bulut Solicitor for the Appellant: Clayton Utz Counsel for the Respondent: Mr S Wood QC with Mr B Kidston and Mr B Jellis Solicitor for the Respondent: Mahoneys Lawyers Counsel for the Intervener: Ms S Kelly Solicitor for the Intervener: National Tertiary Education Union ORDERS
QUD 567 of 2019 BETWEEN: JAMES COOK UNIVERSITY
Appellant
AND: PETER VINCENT RIDD
Respondent
JUDGES:
GRIFFITHS, RANGIAH AND SC DERRINGTON JJ
DATE OF ORDER:
22 JULY 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Circuit Court of Australia on 6 September 2019 be set aside.
3.In lieu thereof the second further amended application dated 3 August 2018 be dismissed.
4.The appellant should within 7 days hereof file and serve any further amended notice of appeal seeking to set aside order 1 of the orders made by the Federal Circuit Court of Australia on 16 April 2019.
5.If the respondent opposes any such amendment, he should within 14 days hereof file and serve a brief outline of submissions, not exceeding 3 pages in length.
6.The appellant should within 21 days hereof file and serve a brief outline of submissions in response, not exceeding 3 pages in length.
7.If necessary, the issue concerning order 1 of the orders dated 16 April 2019 will be determined on the papers and without an oral hearing.
8.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS AND SC DERRINGTON JJ:
This is an appeal from a decision of the Federal Circuit Court declaring that James Cook University (JCU) contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) by making 17 findings against Professor Ridd of breach of the JCU Code of Conduct (Code of Conduct), and by giving him two speech directions, five confidentiality directions, a ‘no satire’ direction, two censures, and terminating his employment in contravention of cl 14 of the JCU Enterprise Agreement 2013-2016 (Enterprise Agreement). The question for decision is whether, as the primary judge held, properly construed, the Enterprise Agreement provided Professor Ridd with the untrammelled right (provided his conduct did not harass, vilify, bully or intimidate) to express his professional opinions in whatever manner he chose, unconstrained by the behavioural standards imposed by the Code of Conduct. For the reasons that follow, it did not, and the termination of Professor Ridd’s employment with JCU did not contravene s 50 of the FWA.
THE FACTS
Professor Ridd was employed by JCU for a period of twenty-seven years. Curiously, no copy of any written contract of employment between JCU and Professor Ridd was included in the Appeal Books and it is unclear whether any such copy was put before the primary judge.
On 2 May 2018, JCU terminated Professor Ridd’s employment for serious misconduct. The termination followed two prior censures, one on 29 April 2016, and one, described as the Final Censure, on 21 November 2017. The censures related to findings by JCU that Professor Ridd had engaged in misconduct contrary to the Code of Conduct in that he had not expressed a professional opinion in a manner consistent with his obligations under the Code of Conduct. This included by failing to act “in the collegial and academic spirit” but had denigrated a colleague (including by failing to treat a fellow staff member “with respect and courtesy”), the ARC Centre of Excellence in Coral Reef Studies (ARC Centre of Excellence), and the Great Barrier Reef Marine Park Authority (GBRMPA), that he had denigrated the University in a manner inconsistent with his obligations under the Code of Conduct, and that he had breached directions to maintain confidentiality. JCU considered that Professor Ridd’s conduct subsequent to the Final Censure amounted to serious misconduct, demonstrating a pattern of conduct intentionally designed to damage the University’s reputation and destructive of the necessary trust and confidence for the continuation of the employment relationship.
The pattern of conduct to which JCU referred in its decision to terminate Professor Ridd’s employment commenced on 16 December 2015 when Professor Ridd sent an email to a journalist suggesting that reports produced by GBRMPA and the ARC Centre of Excellence were unreliable. Professor Ridd stated in the email that those two organisations should “check their facts before they spin their story” and that if the organisations were asked about the issue, his “guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story – and they will smell a trap”. JCU found that, in using the language he did in the relevant email, Professor Ridd’s conduct amounted to “Misconduct” as defined in the Enterprise Agreement in that he did not act in a collegial way, did not respect the right of others, did not display responsibility in respecting his colleagues’ reputations, in breach of the Code of Conduct (the First Finding). On 29 April 2016, Professor Ridd was issued with a formal censure (the 2016 Censure) and was told that, “In future it is an expectation that in maintaining your right to make public comment in a professional capacity in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals (sic) respect” (the First Speech Direction).
Following the publication of an essay in a book entitled Climate Change – The Facts 2017, Professor Ridd was invited to appear on the television show “Jones & Co” to participate in an interview with Alan Jones and Peta Credlin (the Sky Interview). This he did on 1 August 2017. Following the Sky Interview, a complaint was made by another professor at JCU to the effect that Professor Ridd was “trashing JCU’s relationship with ARC, GBRMPA and AIMS again”, those organisations being the ones mentioned in the email the subject of the First Finding and referred to in the Sky Interview (the reference to “AIMS” is a reference to the Australian Institute of Marine Science).
On 24 August 2017, Professor Ridd was notified by JCU that it considered the Sky Interview to be a prima facie case of serious misconduct and wrote, “[a]s per clause 54.1.5 the confidentiality for all parties in the management of this process is highly important, and I trust that you will consider your obligations professionally” (the First Confidentiality Direction).
On 27 August 2017, JCU again wrote to Professor Ridd, after he had sought clarification of the First Confidentiality Direction in the following terms: “[y]ou should not discuss any aspect of the serious misconduct process whilst it is ongoing – except with an appropriate representative” and “you are expected to maintain your confidentiality obligations to the University” (the Second Confidentiality Direction).
On 19 September 2017, JCU wrote to Professor Ridd informing him that it had made a prima facie finding of misconduct in relation to the Sky Interview. The letter directed Professor Ridd to keep the details of the allegations, and all matters relating thereto (including the fact of the 2016 Censure) strictly confidential. He was instructed not to disclose or discuss the matter with the media or in in any other public forum, including social media. He was told that he was permitted to discuss the matter with his immediate family, a support person, his union, professional advisors or JCU’s Employee Assistance Provider – provided he could assure himself that they would maintain the same confidentiality (the Third Confidentiality Direction).
After an internal search of Professor Ridd’s University email account, JCU wrote to Professor Ridd on 23 October 2017 requesting a response to allegations that he had breached the Code of Conduct by denigrating JCU and a particular colleague, being insubordinate, interfering in the disciplinary process in relation to the First Finding, and breaching the First and Second Confidentiality Directions.
Professor Ridd commenced the proceedings in the Federal Circuit Court on 20 November 2017.
On 21 November 2017, Professor Ridd was informed by letter that JCU considered that he had engaged in serious misconduct and that the appropriate disciplinary action was the Final Censure. The conduct found to amount to serious breach of the Code of Conduct and therefore serious misconduct was:
·failing to act “in the collegial and academic spirit of the search for knowledge, understanding and truth” and failing to “treat fellow staff members, students and members of the public with honesty, respect and courtesy” when commenting during the Sky Interview to the effect that we can “no longer trust” scientific research published by AIMS or the ARC Centre of Excellence, and implying or insinuating that scientists who work for those organisations are “emotionally attached” to the reef and their scientific research is “not objective” (the Second Finding);
·failing to “behave in a way that upholds the integrity and good reputation of the University” and in breaching the Information Communication Technology Acceptable Use Policy of the University when expressing views in emails from his University email account to external recipients, including recipients at other universities, that:
(i)“I am not sure I have any influence on the outcome”, being whether he was likely to be terminated (the Third Finding);
(ii)“As usual, I have offended some powerful organisations who don’t like being challenged, and rather than debate the case, they just resort to threats and complaints” (the Fourth Finding);
(iii)“Needless to say I have certainly offended some sensitive but powerful and ruthless egos” (the Sixth Finding); and
(iv)“In my view our whole university system pretends to value free debate, but in fact it crushes it whenever the “wrong” ideas are spoken. They are truly an (sic) Orwellian in nature” (the Seventh Finding).
·failing to treat a colleague “with respect and courtesy” by denigrating that colleague and communicating about him in a disrespectful manner when responding to a student by email about that colleague’s participation in a conference as a keynote speaker in terms, “You wonder why he is there. It is not like he has any clue about the weather. He will give the normal doom science about the GBR” (the Eighth Finding); and
·engaging in conduct designed to interfere with the disciplinary process and in breach of the Second and Third Confidentiality Directions by soliciting a letter of support to the Vice Chancellor through a group email to more than 30 people (the Fifth Finding).
That letter also expressed the “expectation” that the disciplinary process and all matters relating thereto (including the Final Censure) would remain strictly confidential and directed Professor Ridd not to discuss or disclose the matter with or to any person, including the media or in any public forum, with the same exceptions identified in previous directions as to confidentiality (the Fourth Confidentiality Direction).
The letter of 21 November 2017 contained two further directions. The first was that Professor Ridd would refrain “from criticising other persons or organisations in a manner that is inconsistent with the collegial and academic spirit of the search for knowledge, understanding and truth” (the Second Speech Direction). The second directed him to “not make any comment or engage in any conduct that directly or indirectly trivialises, satirises or parodies the University taking disciplinary action against you” (the No Satire Direction).
On 22 November 2017, an article was published in The Australian newspaper detailing the application that had been filed in the Federal Circuit Court by Professor Ridd. Subsequently, Professor Ridd published a suite of confidential documents relating to the two disciplinary processes on a WordPress website which included republication of the comments found to be denigrating of his colleague. He also set up a Go Fund Me website. On 23 November 2017, Professor Ridd sent a copy of the article in The Australian to a student with the subject line “For your amusement”. JCU held this to be a breach of the No Satire Direction (the Fourteenth Finding).
On 8 February 2018, JCU wrote to Professor Ridd to express concerns about the apparent breaches of confidentiality directions evidenced by the media article, the websites and a flyer that had been distributed on the JCU campus. JCU directed Professor Ridd to maintain strict confidentiality in relation to all matters relating to the disciplinary process, drawing his attention to cl 54.1.5 of the Enterprise Agreement (the Fifth Confidentiality Direction).
On 13 April 2018, JCU informed Professor Ridd that it had determined that he had engaged in serious misconduct, including serious breaches of the Code of Conduct and behaviour that was contrary to the interests of the University. JCU found that in making a series of comments to The Australian, and on the WordPress and Go Fund Me websites, and in a flyer distributed on campus, Professor Ridd promoted discussion and perpetrated the view, within and external to the University, that the University took disciplinary action against him because he had a different scientific view to the University or its stakeholders. It found that, contrary to the Code of Conduct, there was no proper basis for the comments, the comments were likely to have damaged, and had the potential to further damage, the reputation of the University, and his actions were in deliberate disregard of his obligations to the University (the Twelfth Finding). The disclosure of documents to The Australian and the publication of the documents on the WordPress website were found to be in breach of the four previous Confidentiality Directions and, in relation to the latter, republication of the denigrating comments about his colleague (the Ninth and Tenth Findings).
Further, JCU found that Professor Ridd had no proper basis for making comments to the effect that he was denied procedural fairness and the comments had damaged the reputation of the University and were in deliberate disregard of the obligations owed to the University (the Thirteenth Finding).
JCU found further that Professor Ridd had published comments regarding the disciplinary process that were untrue, misleading, and/or not full and frank and in so doing, failed to act with honesty and integrity in breach of the Code of Conduct. Professor Ridd had made the comment that he had been instructed not to talk anybody about the allegations, even to his wife. The statement was true, in that he had been refused permission to mention the allegations to his wife in an email dated 27 August 2017. He was, however, subsequently given permission to do so on 19 September 2017. This was not mentioned in the published comments (the Fifteenth Finding).
Professor Ridd was also found to have breached to Code of Conduct by failing to “treat fellow staff members… with honesty, respect and courtesy” when replying to an email from his Dean in a manner that was said to be “threatening, insubordinate, and disrespectful”. The email included comments that, “I think you should consider your actions in all this and which side you want to be remembered as being part of. So far it does not look encouraging but I live in hope” and described the Dean’s email as “offensive” and as “[not living] up to public expectations of decent behaviour” (the Sixteenth Finding).
Professor Ridd was also found to have breached the Code of Conduct by preferring his own interests and those of the Institute of Public Affairs (IPA) above the interest of the University in failing to disclose that the IPA had paid for various travel expenses and was providing assistance with his legal costs to challenge the 2017 disciplinary processes in circumstances where the IPA endorses, and has promoted, Professor Ridd’s comments (the Seventeenth Finding).
Professor Ridd was also found to have deliberately and repeatedly breached Confidentiality Directions by: providing a folder of confidential documents to another Professor (who did not look at them); disclosing information to the author of an article in the Cairns News; and causing a flyer to be distributed on JCU’s campus which disclosed the outcome of the 2017 disciplinary process and said, inter alia, that he had “no intention of accepting the final censure or complying with the order to remain silent and would rather be fired than accept the situation” (the Eleventh Finding).
On 2 May 2018, Professor Ridd’s employment with JCU was terminated.
THE CASE AT TRIAL
Somewhat inexplicably, Professor Ridd did not dispute that he had engaged in any of the conduct that formed the basis of the findings by JCU that related to breach of the behavioural standards prescribed by the Code of Conduct (being the First – Fourth, Sixth – Eighth, Twelfth, Thirteenth, and Fifteenth – Seventeenth Findings). Nor did he dispute that his conduct should not be characterised as breaching those standards of behaviour such that it could fairly be characterised as misconduct or serious misconduct — some instances of the conduct charged were undoubtedly trivial. In particular, Professor Ridd did not ask the Court below to review JCU’s findings as to whether or not his conduct in fact breached the standards of behaviour prescribed by the Code of Conduct. Senior counsel for Professor Ridd said explicitly, “…we haven’t run a case that [JCU] contravened the code of conduct, that the findings aren’t supported by the evidence, that it doesn’t constitute misconduct. We haven’t run any of those – that case” [Transcript, 26.03.19, P-65].
Professor Ridd also did not dispute that he had discussed or disclosed information contrary to directions he was given and which formed the basis of the Fifth and Ninth – Eleventh Findings. Nor did he dispute sending the email the subject of the Fourteenth Finding.
Professor Ridd pleaded below, and maintained the position in this Court, that in respect of each of the findings of misconduct and serious misconduct, he was exercising his right to intellectual freedom in accordance with cl 14 of the Enterprise Agreement and, that as none of his conduct harassed, vilified, bullied, or intimidated those who disagreed with his views (which was conceded by JCU), his conduct was protected by cl 14. It was therefore a contravention of the Enterprise Agreement by JCU to discipline him for any of the conduct that formed the basis of those findings.
The primary judge agreed and held that First – Fourth, Sixth – Eighth, Twelfth, Thirteenth, and Fifteenth – Seventeenth Findings were unlawful because they breached the rights that Professor Ridd had pursuant to cl 14.
In respect of the findings of breach of the Confidentiality Directions, Professor Ridd pleaded that, in so far as they were made in purported reliance on cl 54.1.5 of the Enterprise Agreement, that clause imposed no obligation of confidence on Professor Ridd and so no direction could be made pursuant to that clause. Alternatively, it was pleaded that Professor Ridd had consented to the disclosure, was not prohibited from disclosing the information, any disclosure was not of information “collected or recorded” by JCU and, in any event, was not serious misconduct within the definition of that expression in the Enterprise Agreement.
Professor Ridd also pleaded that cl 54.1.5 is subject to cl 14 of the Enterprise Agreement. Thus, as the Confidentiality Directions had the effect of prohibiting or limiting the future exercise of his right to intellectual freedom under cl 14 of the Enterprise Agreement, by giving those directions, JCU had contravened the Enterprise Agreement and so the directions were neither reasonable nor lawful.
Consequently, on either basis, the Fifth and Ninth – Eleventh Findings could not lawfully have been made.
The primary judge agreed and held that none of the Confidentiality Directions was lawful because JCU had no power to give the directions, and even if it did have the power, any such direction contravened the rights Professor Ridd had pursuant to cl 14. The Fifth and Ninth – Eleventh Findings were therefore unlawful because they each related to the breach of a direction which was of itself unlawful.
Professor Ridd pleaded similarly that the First and Second Speech Directions, and the No Satire Direction, had the effect of prohibiting or limiting his future exercise of his right to intellectual freedom under cl 14 of the Enterprise Agreement. By giving those directions, JCU had contravened the Enterprise Agreement and so the directions were neither reasonable nor lawful. Consequently, the Fourteenth Finding, which related to the No Satire Direction, could not lawfully have been made.
The primary judge agreed. His Honour held that each of the Speech Directions and the No Satire Direction sought to interfere with the rights that Professor Ridd had pursuant to cl 14. The Fourteenth Finding was therefore unlawful because it related to the breach of a direction which was of itself unlawful.
The primary judge reasoned that it followed that the censures were also in contravention of cl 14 and were therefore unlawful, as was the termination of Professor Ridd’s employment, because it punished him for conduct that was protected by cl 14 of the Enterprise Agreement.
The primary judge held that JCU has assumed that the Code of Conduct takes precedence over cl 14 and, in making that assumption, made a “fundamental error” (Ridd v James Cook University [2019] FCCA 997 [294]-[295]). He found that the Code of Conduct is subordinate to cl 14 of the Enterprise Agreement (Ridd v James Cook University [2019] FCCA 997 [299]) and that it is “only when behaviour is not covered by cl.14 that the Code of Conduct can apply. Clause 14 means that it is the right of Professor Ridd to say what he has said in any manner he likes so long as he does not contravene the sanctions embedded in cl.14” (Ridd v James Cook University [2019] FCCA 997 [301]).
As a consequence of the approach taken by Professor Ridd in his claim against JCU, the primary outcome of this appeal is limited solely to the question of whether, properly construed, the Enterprise Agreement provided Professor Ridd with the untrammelled right (provided only that he did not harass, vilify, bully or intimidate) to express his opinions in whatever manner he chose, unconstrained by the behavioural standards imposed by the Code of Conduct, with which he was bound to comply.
Professor Ridd submitted that the Court should view the video recording of the Sky Interview, the written transcript of which was in evidence before the primary judge (but not the video recording itself). No application pursuant to r 36.57 of the Federal Court Rules 2011 (Cth) to receive further evidence on appeal had been filed or foreshadowed. The Court declined to view the video recording in the course of the appeal. Even if an application had been made in the proper form, the limited compass of the appeal made it unnecessary to receive the further evidence. There was no challenge to any finding of fact relating to the Sky Interview, nor was there any relevant issue of credibility.
The National Tertiary Education Union (NTEU) sought leave to intervene, pursuant to r 36.32 of the Federal Court Rules 2011 (Cth), on the question of the proper construction of the Enterprise Agreement and it filed draft written submissions. The NTEU was permitted to make oral submissions at the hearing of the appeal, contingent upon whether the Court granted it leave to intervene (which the Court said it would determine in its reasons for judgment).
Having regard to the principles relevant to an application to intervene as set out in Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37 and in Hancock Prospecting Pty Ltd v Reinhart [2017] FCAFC 170; 257 FCR 442, the Court has concluded that leave should be refused. First, the construction of JCU’s Enterprise Agreement does not involve consideration of matters of general relevance to the members of the NTEU; the Enterprise Agreement is peculiar to one university only, JCU. Secondly, there was no suggestion that the parties to the proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination. Thirdly, the submissions of the NTEU largely involved repetition of the submissions made on behalf of Professor Ridd and so were unnecessary.
No question of liability for costs arises within the Fair Work jurisdiction.
JAMES COOK UNIVERSITY
JCU is a university established by the James Cook University Act 1997 (Qld). Section 4 establishes the University as a body corporate. Section 5 prescribes the University’s functions to be:
(a) to provide education at university standard; and
(b)to provide facilities for study and research generally and, in particular, in subjects of special importance to the people of the tropics; and
(c)to encourage study and research generally and, in particular, in subjects of special importance to the people of the tropics; and
(d)to provide courses of study or instruction (at the levels of achievement the council considers appropriate) to meet the needs of the community; and
(e)to confer higher education awards; and
(ea)to disseminate knowledge and promote scholarship;
(eb)to provide facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university; and
(f)to exploit commercially, for the university’s benefit, a facility or resource of the university, including for example, study, research or knowledge, belonging to the university, whether alone or with someone else; and
(g)to perform other functions given to the university under this or another Act.
Section 7 establishes the Council of the University which, by virtue of s 8, is the governing body of the University.
THE ENTERPRISE AGREEMENT
An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down by the FWA (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 [90]). The Full Court explained the effect of an enterprise agreement made under the FWA at [89]:
[T]he Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and … will be felt also by those who did not agree to them. Someone such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.
The relevant Enterprise Agreement came into effect in 2013. It is expressed to “cover James Cook University and its staff” (cl 4.1). It therefore applies to JCU and Professor Ridd (FWA ss 52 and 53), although the FWA does not identify the employer, nor any employee, as a “party” to an enterprise agreement.
Clause 8 of the Enterprise Agreement defines the “Parties to the Agreement” to be “James Cook University and those staff unions listed at Clause 4, Coverage, of this Agreement”. Those staff unions as listed in cl 4 are: National Tertiary Education Union; United Voice; Together Queensland, Industrial Union of Employees; Australian Municipal, Administration, Clerical and Services Union; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Part B of the Enterprise Agreement is headed “University Commitments”. The terms “JCU” and “the University” are used variously throughout Part B and indeed throughout the Enterprise Agreement. The drafting obscures the intent of the document. Part B describes “the University[’s]” commitments in relation to the employment of Australian Aboriginal and/or Torres Strait Islander People, “JCU and its staff[‘s]” responsibility in respect of workplace health and safety, “JCU[‘s]” recognition of the need for staff support and representation, “JCU[‘s]” commitment to maintaining a Joint Consultative Committee (JCC), the agreement of “[t]he parties to this Agreement” to supporting the Code of Conduct, “JCU[‘s]” commitment to intellectual freedom, and “the University[’s]” commitment to providing support to staff who experience domestic violence. It is not clear whether, throughout the Enterprise Agreement, either term is to be read to mean the body corporate as established by the James Cook University Act 1997 (Qld), or whether either term is used collectively, as referring to its constituent elements, including its staff.
Clause 13 relates to the Code of Conduct. It provides:
13.The parties to this Agreement support the Code of Conduct as it establishes the standard by which staff and volunteers conduct themselves towards others and perform their professional duties on behalf of JCU.
13.1. The parties agree that the Code of Conduct will only be changed following consultation with the JCC.
13.2. JCU is committed to achieving and maintaining the highest standards of ethical conduct and through the Code of Conduct will ensure that staff:
•Seek excellence as a part of a learning community;
•Act with integrity;
•Behave with respect for others; and
•Embrace sustainability and social responsibility.
13.3. The parties note that the Code of Conduct is not intended to detract from Clause 14, Intellectual Freedom. (emphasis added)
Clause 14 of the Enterprise Agreement provides:
14.1. JCU is committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct.
14.2. Intellectual freedom includes the rights of staff to:
•Pursue critical and open inquiry;
•Participate in public debate and express opinions about issues and ideas related to their respective fields of competence;
•Express opinions about the operations of JCU and higher education policy more generally;
•Be eligible to participate in established decision making structures and processes within JCU, subject to established selection procedures and criteria;
•Participate in professional and representative bodies, including unions and other representative bodies.
14.3. All staff have the right to express unpopular or controversial views. However, this comes with a responsibility to respect the rights of others and they do not have the right to harass, vilify, bully or intimidate those who disagree with their views. These rights are linked to the responsibilities of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.
14.4. JCU acknowledges the rights of staff to express disagreement with University decisions and with the processes used to make those decisions. Staff should seek to raise their concerns through applicable processes and give reasonable opportunity for such processes to be followed.
14.5. Staff, as leaders and role models to students and the wider community, must adhere to the highest standards of propriety and truthfulness in scholarship, research and professional practice.
14.6. Staff members commenting publicly in a professional or expert capacity may identify themselves using their University appointment or qualifications, but must not represent their opinions as those of JCU. The University expects that staff will maintain professional standards when they intentionally associate themselves with its name in public statements and/or forums.
14.7. Staff who contribute to public debate as individuals and not in a professional or expert capacity, must not intentionally identify themselves in association with their University appointment.
The term “intellectual freedom” is not otherwise defined in the Enterprise Agreement.
Clause 8 of the Enterprise Agreement defines “serious misconduct” to be:
•Serious misconduct as defined by the Fair Work Regulations 2009 (Cth); as amended from time to time; or
•Any serious breach of the James Cook University Code of Conduct; (emphasis added) or
•Official Misconduct as defined by the Crime and Misconduct Act 2001, as amended form time to time.
The principles and procedures for dealing with misconduct and serious misconduct are detailed in Part G of the Enterprise Agreement, in particular cl 54.
THE CODE OF CONDUCT
As a university established by the James Cook University Act 1997 (Qld), JCU is a “public sector entity” within the definition contained in the Schedule to the Public Sector Ethics Act 1994 (Qld) (PSEA) and is subject to the relevant provisions of that Act.
If there is any inconsistency between the provisions of the Enterprise Agreement and the PSEA, the Enterprise Agreement prevails to the extent of any inconsistency (FWA s 29). The parties did not contend that there was any relevant inconsistency.
Section 10 of the PSEA provides:
(1)In recognition of the ethics principles and values for public service agencies, public sector entities and public officials, codes of conduct are to apply to those agencies, entities and officials in performing their function.
(2)The purpose of the code is to provide standards of conduct for public service agencies, public sector entities and public officials consistent with the ethics principles and values.
A “public official”, for the purposes of a public sector entity means, inter alia, an employee of the entity. There was no dispute that Professor Ridd was a “public official” for the purposes of the PSEA.
Subdivision 1 of Division 3 of Part 4 of the PSEA provides for the content of codes of conduct for a public sector entity. Section 15 requires the chief executive officer to ensure that a code of conduct is prepared for the entity and, relevantly, s 16 provides that reasonable steps must be taken to consult about the code with the public officials to whom the code is to apply, industrial organisations representing the interests of any of the officials, and any other appropriate entities representing any of the officials.
Section 17 provides that the responsible authority for a public sector entity may approve a code of conduct prepared under s 15. The responsible authority for a university established under an Act is the council of the university (PSEA, Schedule).
There was no dispute that the Code of Conduct was promulgated after consultation with the JCC, as referred to in cl 13 of the Enterprise Agreement, nor that the Code of Conduct was validly approved by the Council of the University on 12 April 2012 and was implemented from 10 May 2012.
The Code of Conduct describes the standards of behaviour expected of all staff of JCU in respect of four fundamental ethical principles “to guide the actions” of staff when acting in their official capacity. Those principles are to: seek excellence as part of a learning community; to act with integrity; to behave with respect for others; and to embrace sustainability and social responsibility.
The Code of Conduct states that it “must be read in conjunction with the Explanatory Statement for the Code of Conduct which provides further detail regarding the required standards of conduct”. There was also no dispute that the Explanatory Statement was validly approved by the Council of the University on 12 April 2012 and was implemented from 10 May 2012.
The Code of Conduct provides that failure to comply with it “may lead to disciplinary action, and in serious cases, may lead to termination of employment and/or criminal prosecution”.
Quite apart from that statement in the Code of Conduct, s 18 of the PSEA provides that a public official of a public service entity must comply with the standards of conduct stated in the entity’s code of conduct that apply to the official. Section 24(c) provides that if the public official is not a public service officer or a local government employee, but there are disciplinary processes applying to the official, action for a contravention of an approved code of conduct should be dealt with under those disciplinary processes applying to the official.
In this case, the disciplinary processes that applied to Professor Ridd are those set out in Part G of the Enterprise Agreement.
THE INTERACTION BETWEEN THE ENTERPRISE AGREEMENT AND THE CODE OF CONDUCT
The primary judge held that the Code of Conduct is not part of the Enterprise Agreement. He acknowledged, however, that the Enterprise Agreement envisages that there will be a Code of Conduct (Ridd v James Cook University [2019] FCCA 997 [21]).
The gravamen of the findings of the primary judge is that the Code of Conduct is subordinate to cl 14 of the Enterprise Agreement. Consequently, according to the primary judge, “If the whole of what is said objectively is an exercise of intellectual freedom, then the protections of cl.14 apply … It is only when behaviour is not covered by cl.14, that the Code of Conduct can apply” (Ridd v James Cook University [2019] FCCA 997 [299]-[301]).
The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i)The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv)Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi)A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
Turning first then to the language of the Enterprise Agreement and cognizant of the overarching purpose of an enterprise agreement — to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees. As has been described above, cl 14.1 contains an expression of the University’s commitment “to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct”. It is pertinent to note that the Code is described as “JCU’s Code of Conduct”, not the “University’s Code of Conduct” recalling that it is explicitly stated in cl 13.1 that “The parties to this Agreement support the Code of Conduct”. That necessarily suggests that the Code of Conduct is not simply an artefact of the body corporate but rather of all those persons whose interests were represented in the making of the Enterprise Agreement.
As described in cl 14.1, JCU’s commitment is not one simply to act consistently with the protection and promotion of intellectual freedom; the use of the conjunctive in that provision requires also that JCU act in accordance with the Code of Conduct. Employees therefore have the right to expect that JCU will honour that commitment both as between JCU and an employee, and as between employees. The mechanism for so doing is the Code of Conduct.
As has also been observed above, the Enterprise Agreement does not provide a definition of “intellectual freedom”. Clause 14.2 does, however, provide an inclusive list of rights that are said to be embodied within the concept of intellectual freedom and which one might expect to be exercised within a university context. The first two, to “[p]ursue critical and open inquiry” and to “express opinions about issues and ideas related to their respective fields of competence”, relate most directly to activities that would be expected to be undertaken by academic members of staff and which are embodied in the broadly understood concept of “academic freedom”— referred to in the Code of Conduct but not in the Enterprise Agreement. The remaining three relate to activities that could be undertaken both by academic and non-academic staff within a university. It does not, and could not, seek to give full expression to the concept of intellectual freedom and the myriad circumstances in which the right to intellectual freedom might be exercised, either intra or extramurally.
The scope of the definitional examples of the exercise of intellectual freedom in cl 14.2 is explained in the subsequent sub-clauses. Clause 14.3 acknowledges that the views that might be expressed by staff in the exercise of intellectual freedom might be unpopular or controversial and that all staff have the right to express such views. This right is, however, necessarily constrained by the correlative responsibility to respect the rights of others and the proscribing of the harassment, vilification, bullying or intimidation of those who disagree with such views. Once more, the use of the conjunctive constrains the exercise of the right to express unpopular or controversial views both by reference to respect for the rights of others and by the proscription of harassment, vilification, bullying or intimidation.
Similarly, cl 14.4 constrains the acknowledged right, encompassed within the exercise intellectual freedom, to express negative opinions about the operations of JCU and higher education policy generally, by stipulating an expectation that staff should raise their concerns through applicable processes.
Clauses 14.5-14.7 articulate obligations attaching to staff, and thereby place some parameters around the rights of staff in pursuing critical and open inquiry, and in participating in public debate and expressing opinions. Staff “must adhere to the highest standards of propriety and truthfulness in scholarship, research and professional practice”; “must not represent their opinions as those of JCU”; and, where contributing to public debate as individuals, “must not intentionally identify themselves in association with their University appointment”.
Professor Ridd urged a construction of cl 14 whereby the only constraint on the exercise by staff of whatever can be properly described as an exercise of intellectual freedom is the proscription of harassment, vilification, bullying or intimidation. Such a construction does not flow naturally from a plain reading of cl 14 in its entirety. First, it would leave the words “this comes with a responsibility to respect the rights of others” in cl 14.3 without any work to do. One has a right not to be defamed. If the only prohibition is, however, harassment, vilification, bullying or intimidation, defamatory statements concerning other staff would be protected. Secondly, it ignores the express constraints in cll 14.4-14.7. Thirdly, it ignores the express reference to the Code of Conduct in cl 14.1.
The question then is whether the Code of Conduct is incorporated into the Enterprise Agreement. Section 257 of the FWA provides that, despite s 46AA of the Acts Interpretation Act 1901 (Cth), an enterprise agreement may incorporate material contained in an instrument or other writing. An example of incorporation of a document by reference is cl 23 of the Yarra Trams Enterprise Bargaining Agreement 2009, considered in Australian Rail, Tram & Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2014] FCAFC 24, which provided (see [5]):
Staff discipline will continue to be conducted in accordance with the Yarra Trams Disciplinary Counselling Policy and Procedures, as contained in MSM document c400im0001.
In considering the question of whether the policy was incorporated into the Yarra Trams Enterprise Bargaining Agreement, the Full Court held at [9] that it “is unnecessary to rely on custom and practice to perceive that the clause required, in terms, that staff discipline be conducted in accordance with a clearly identified document, the disciplinary policy”.
Clauses 6.2 and 6.3 of the Enterprise Agreement are relied upon by Professor Ridd in support of the contention that an instrument such as the Code of Conduct cannot detract from the terms of the Enterprise Agreement. It is asserted that the Code of Conduct falls within the ambit of “all other policies, procedures and guidelines” within the meaning of those sub-clauses. Clause 6 provides:
6.1The parties agree that the Supported Wage System for People with Disabilities Policy will form part of this agreement.
6.2All other policies, procedures and guidelines which support the operation of this Agreement or provide staff benefits, conditions of employment or entitlements are not incorporated into nor form part of this Agreement and may be made or varied from time to time, following consultation with the Joint Consultative Committee (JCC).
6.3If there is any inconsistency between the guidelines and policies and the express terms of this Agreement, this Agreement will apply.
It is to be noted that the clause refers to “policies, procedures and guidelines” and it expressly incorporates one particular policy. Numerous other references to various policies are made throughout the Enterprise Agreement, including to the Human Resources Policy and Procedures, the Recruitment, Selection and Appointment Policy, the Special Studies Program policy, and the Grievance Resolution Policy and Procedure. Similarly, there is reference throughout the Enterprise Agreement to various guidelines, including to the Travel Guidelines, guidelines for Marketing and Casual staff, and the Special Studies Program guidelines. The Code of Conduct is not referred to anywhere in the Enterprise Agreement in terms that suggest it is a mere policy, procedure or guideline. Quite the contrary. It is expressly referred to in cl 13 as one of JCU’s commitments under the Enterprise Agreement.
Clause 6 does not operate to preclude the incorporation by reference of the Code of Conduct into the Enterprise Agreement.
The commitment in cl 14.1 to act in accordance with the Code of Conduct is consistent with the statement in cl 13.3 that the Code of Conduct is “not intended to detract from Clause 14”. In this context it is accepted that the word “detract” should be given its ordinary grammatical meaning and usage. Clause 13.3 is no more than a statement of intent by JCU not to diminish its commitment to promote and protect intellectual freedom by means of the Code of Conduct. The Code of Conduct does not do so. If the Code of Conduct were to proscribe any of the matters listed in cl 14.2 (for example the right of staff to pursue critical and open inquiry or to participate in public debate and express opinions about issues and ideas related to their respective fields of competence), those provisions of the Code of Conduct would indeed detract from cl 14.
In the appeal, Professor Ridd placed considerable emphasis on the terms of cl 13.3. He submitted that this provision made clear that cl 14 is the primary provision and that cl 13 is subordinate to it. There are several reasons why that submission should be rejected. First, it is important to note that cl 13 reflects and records various statements by the parties to the Enterprise Agreement (being JCU and the specified unions, as opposed to JCU staff). Those statements include the statement in the chapeau to cl 13 of the parties’ mutual support for the Code of Conduct as establishing the standards by which staff and volunteers conduct themselves towards others and perform their professional duties on behalf of JCU. There are no “parties” as such to the Code of Conduct. Rather, it is an instrument which is made by the CEO and approved by the Council of the University, as required by the PSEA. Compliance with the Code of Conduct is, however, part of the terms and conditions of employment of all JCU staff (both academic and non-academic) as well as volunteers and contractors.
Secondly, the statement in cl 13.3 to the “parties” noting that the Code is not intended to detract from cl 14, Intellectual Freedom, records a note to that effect by the parties to the Enterprise Agreement. As the University pointed out in argument, cl 13.3 is an interpretive provision which assists in the proper construction of cl 14.
Thirdly, it is critical to note that cl 14.1 records the commitment of JCU to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with the Code of Conduct. Part of that commitment is an implicit commitment on the part of the University to require all staff to comply with the Code of Conduct as part of their employment relationship. That is confirmed by the terms of both the Code of Conduct and the Explanatory Statement, which state that the Code applies to all staff of JCU while acting in their official capacity.
Fourthly, having regard to the explicit statement in cl 14.1 concerning acting “in accordance with the Code Conduct”, cl 13.3 should not be construed so as to produce a construction of cl 14 which has the effect of carving out from the content of that clause the standards imposed by the Code of Conduct. Clause 13.3 and cl 14 should be read together harmoniously. Having regard to their terms, there is no inconsistency between the two provisions which warrants one being characterised as primary and the other as subordinate. They should be read together.
Nor is the Code of Conduct “an attempt to rewrite the Intellectual Freedom clause”, as was held by the primary judge (Ridd v James Cook University [2019] FCCA 997 [244]). Rather, the function of the Code of Conduct is to set the standards of behaviour for the exercise of the range of activities in which staff bound by the Code of Conduct might engage in their official capacity. This includes the expectations as to standards of behaviour in undertaking basic research, in teaching and supervising students, in the use of resources, in decision-making, and in general human interactions.
The Code of Conduct describes the expectations as to how the rights of staff, as outlined in the Enterprise Agreement, are to be exercised commensurately with the ethical principles prescribed in the PSEA and enshrined in the approved Code of Conduct.
By being bound by the Code of Conduct, including through their contract of employment, the following rights and duties of staff arise to, relevantly (drawing on parts of Principles 1 to 3 of the Code):
•value academic freedom, and enquire, examine, criticise, and challenge in the collegial and academic spirit of the search for knowledge, understanding and truth;
•behave with intellectual honesty;
•have the right to make public comment in a professional, expert or individual capacity, provided that we do not represent our opinions as those of the University unless authorised to do so;
•have the right to freedom of expression, provided that our speech is lawful and respects the rights of others;
•maintain appropriate confidentiality regarding University business;
•behave in a way that upholds the integrity and good reputation of the University;
•take reasonable steps to avoid, or disclose and manage, any conflict of interest (actual, potential or perceived) in the course of employment;
•comply with any lawful and reasonable direction given by someone who has authority to give that direction;
•treat fellow staff members, students and members of the public with honesty, respect and courtesy, and have regard for the dignity and needs of others; and
•refrain from and not accept vilification, bullying, harassment or sexual harassment.
It may be observed that many of these standards are couched in vague and imprecise language. They do not readily provide clear guidance to staff as to whether particular conduct might breach the obligations outlined in the Code of Conduct so as to amount to misconduct, or indeed serious misconduct. Reasonable minds may differ about whether particular conduct in fact breaches the obligations on any given occasion. This is an unfortunate consequence of the drafting, particularly given the very serious consequences that may flow from a decision by JCU that conduct has breached the standards. However, as has already been emphasised, Professor Ridd did not challenge the conclusions reached by JCU that his conduct breached the standards of behaviour required by the Code of Conduct.
The obligation of staff, including Professor Ridd, to comply with the Code of Conduct is enshrined in the Enterprise Agreement (and in his employment relationship with JCU, as contemplated by the PSEA) and the consequences of breach are prescribed by the Enterprise Agreement.
Professor Ridd pressed the consideration of a number of contextual factors which were said to support the proposition that cl 14 alone sets out the rights of employees with respect to the exercise of intellectual freedom, constrained only by the limits in cl 14 itself. The most significant contextual element that is said to inform the proper construction of the Enterprise Agreement is the fact that it is concerned with a university and that the concept of academic freedom is an ancient principle foundational to a university context (Burns v Australian National University (1982) 61 FCR 76, 88).
The primary judge considered that “the University has not understood the whole concept of intellectual freedom”. He held that, “In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset. It may not always be possible to act collegiately (sic) when diametrically opposed views clash in the search for truth” (Ridd v James Cook University [2019] FCCA 997 [296]).
It is important, however, that the terms “intellectual freedom” and “academic freedom” not be conflated. As has already been observed, the former is used in the Enterprise Agreement, the latter in the Code of Conduct, together also with the terms “intellectual honesty” and “freedom of expression”. The former Chief Justice of the High Court of Australia, the Hon Robert S French AC observed in his Independent Review of Freedom of Speech in Australian Higher Education Providers (March 2019) (French Review) p 18 (emphasis added):
‘[F]ree intellectual inquiry’…appears in the HE [Higher Education] standards. It is a term of uncertain meaning but seems to cover some elements of academic freedom. Freedom of speech is an aspect of academic freedom although used in a sense which is not congruent with the general freedom of expression applicable on and off campus. It is a freedom which, in this context, reflects the distinctive relationship of academic staff and universities, a relationship not able to be defined by reference to the ordinary law of employer and employee relationships. Academic freedom has a complex history and apparently no settled definition. It is nevertheless seen as a defining characteristic of universities and similar institutions.
…
Institutional autonomy is a further dimension of academic freedom. It is the capacity of the institution to discharge, in the way it thinks fit, its mission of transmitting and generating human knowledge and conferring on students the skills and abilities which the community is entitled to expect. It covers autonomy in the formulation and application of domestic rules and policies relating to the conduct of students and staff and visitors to the institutions. The extent and limits of such autonomy is ultimately a matter of public policy informed by the history, tradition and purposes of higher education as well as by contemporary needs.
The historical context in which the ideal of academic freedom developed is important. As Mr French notes, it can be traced back to Socrates’ defence in Plato’s Apology. Even then though, his teaching was constrained by, and served, his belief in God (French Review p 114). As university education became increasingly secular, recognition of the principle that “[s]cience and its teachings shall be free” became common throughout Europe (French Review p 114-115). Mr French refers to the writings of American scholar, E E Brown, at the end of the 19th century in which he rejected the proposition that academic freedom stood for “mere independence of all constraint” (French Review p 115).
In time, academic freedom provided the foundation for the concept of tenure for professorial staff (see Jim Jackson, “Express Rights to Academic Freedom in Australian Public University Employment” (2005) 9 Southern Cross University Law Review 107). From the establishment of the first university in Australia in 1850, the University of Sydney, a professor could expect to be offered tenure of office during good behaviour, subject only to becoming incapacitated for performing the duties of his office, attaining the age of 60, or misconduct. Lecturers had no such tenure and their positions were terminable on six months’ notice. The first award covering all universities was the Australian Universities Academic Staff (Conditions of Employment) Award 1988. It defined academic duties, including obligations to teach and research, introduced a standardised dismissal procedure, and defined misconduct. There was no reference to “academic freedom” and, perhaps more significantly, the word “tenure” was not used. Rather, academics of all levels were to be offered “continuing appointments” subject to probationary periods. Gradually, specific references to the appointment of professorial staff disappeared from university statutes.
The observations in Burns v Australian National University (1982) 61 FCR 76 are therefore of little more than historical interest. The statute governing the Australian National University in force at the time of Professor Burns’ appointment had certain rights conferred on him under that Act. The Act entitled a professor to be a member of the Professorial Board which advised the University Council on matters relating to education. A professor was eligible for election to the Council and entitled to vote for the election to the Council of a professor in the Institute of Advanced Studies. It was in that context Ellicott J observed that, “The notion that in the involuntary termination of a professor’s appointment it is merely acting under the terms of appointment and not under its basic statute as well, in my view, debases the very principle upon which the University is founded – academic freedom” ((1982) 61 FCR 76, 88). The Australian National University Act 1991 (Cth) differs from its predecessor. The appointment of the professoriate is no longer a matter of specific provision in the Act and there is no special entitlement for professors to be elected to the Council; all members of the academic staff are eligible. In any event, it was held on appeal that the rights and duties of the parties to the contract of engagement arose from that contract and not from the Australian National University Act 1946 (Cth) (Australian National University v Burns (1982) 64 FLR 166).
There is little to be gained in resorting to historical concepts and definitions of academic freedom. Whatever the concept once meant, it has evolved to take into account contemporary circumstances which present a challenge to it, including the internet, social media and trolling, none of which informed the view of persons such as J S Mill, John Locke, Isaiah Berlin and others who have written on the topic. As noted by Professor Jennifer Lackey in the introduction to her book, Academic Freedom (Oxford University Press, 2018, 11), although “the protection provided by academic freedom is at least primarily from institutional censorship or retaliation, particularly that of the State and the administration”, a big question today “is whether this protection is sufficient, especially against the background of the underlying rationale of academic freedom and the ever-changing challenges posed by online activity”. Professor Lackey says further (at 19):
Academic freedom plays an indispensable role in fulfilling the mission of the university. Many of the issues facing institutions of higher learning are familiar and timeless ones, such as how to understand the rationale for academic freedom and whether its aims are compatible with campus protests and no platforming. But a host of new challenges have arisen in recent years in response to the changing norms and expectations of the university. With the increasing role of the Internet in research, the rise of social media in both professional and extramural exchanges, and student demands for accommodations such as content warnings and safe spaces, the parameters of, and challenges to, academic freedom often leave us in unchartered territory. (emphasis added)
In considering the industrial realities of the modern university system and, in the light of the customs and working conditions of this particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]), it must be understood that all public Australian universities now have enterprise agreements which, to a greater or lesser degree, contain clauses referring to intellectual freedom or to academic freedom (French Review, Ch 21). A survey of these clauses reveals that greater or lesser degrees of freedom are to be found across the university sector, no doubt as a consequence of the relative weight the parties have given to such freedom in the course of the industrial bargaining process. One university’s enterprise agreement states that, “The University promotes and protects Academic Freedom of Expression, as set out separately in University Policy”. That Policy describes a core value of the university being “to preserve, defend and promote the traditional principles of academic freedom … so that all scholars at the University are free to engage in critical enquiry, scholarly endeavour and public discourse without fear or favour”. The Policy expressly recognises that scholars are entitled to express their ideas and opinions even when doing so may cause offence. The right to exercise academic freedom of expression is subject to two principles: that all discourse must be undertaken reasonably and in good faith; and all discourse should accord with principles of academic and research ethics.
A quite different approach is taken by another university whose enterprise agreement provides, “Without derogating from or limiting the employment and other legal obligations of Academic Employees, including the obligations to comply with reasonable and lawful directions and requests, the parties to the Agreement are committed to the principles of promoting and protecting academic freedom”. Those principles are said to include the rights of all Academic Employees to, inter alia, “express unpopular or controversial views, but this does not mean the right to harass, bully, vilify, defame or intimidate”. The definition of both misconduct and serious misconduct within this particular enterprise agreement includes the refusal to carry out a lawful and reasonable instruction.
These two examples, from amongst the 44 referred to in the French Review (Appendix 8), illustrate that there is no common understanding across the university sector as to the content of any principle of academic freedom or of intellectual freedom, nor any unanimity as to where the bounds of any such freedoms should be set.
It is also important to recognise that the provisions of the Enterprise Agreement and the Code of Conduct apply to all staff of the University, not simply to academic staff. That may explain why the phrase “intellectual freedom”, rather than “academic freedom” is used in cl 14. The phrase “academic freedom” is used in the Code of Conduct. The Explanatory Statement says in relation to “academic freedom” that “Staff are free within their respective fields of competence to pursue academic endeavour in accord with appropriate standards of scholarly inquiry. Staff have an implicit right to inquire, to examine, to criticise and to challenge in the collegial and academic spirit of the search for knowledge and understanding”. The notion of academic freedom is applicable only to members of the academic staff. This follows from the distinction drawn in the Code of Conduct between “academic freedom” and “freedom of expression”. The latter expression is also elucidated in the Explanatory Statement: “All staff, regardless of involvement in academic duties, have the right to freedom of expression. However, this comes with a responsibility to respect the rights and reputations of others. Academic or constructive criticism is encouraged, but staff must not engage in hate speech as this conflicts directly with the universal value of respect for individuals”.
The commitment of JCU in cl 14.1 of the Enterprise Agreement – to promote intellectual freedom in accordance with the Code of Conduct – finds scope and substance in the Code, which is consistent with the promise. The scope and substance of the commitment is necessarily different as between academic staff members and non-academic members of staff. Academic staff members have the particular rights described in the Enterprise Agreement and which are given additional content in the Code of Conduct. The standards by which these rights are to be exercised are prescribed in the Code of Conduct.
The construction of the Enterprise Agreement for which Professor Ridd contends would elide any distinction between intellectual freedom and academic freedom. If cl 14 provides for the right of all staff to express their views in any manner they so choose, subject only to the constraint directed at harassment, vilification, bullying or intimidation, there would be no distinction between academic freedom and intellectual freedom. In the context of a university, it cannot be supposed that such a consequence would have been intended by the drafters and that the particular privileges and obligations that attend academic discourse would be irrelevant.
It is also necessary to construe the Enterprise Agreement as a whole. The interaction between cll 13 and 14 and the provisions relating to misconduct and serious misconduct in cl 54 are significant. Clause 54 provides the mechanism, to which the parties to the Enterprise Agreement have agreed, for JCU to discipline staff for misconduct and serious misconduct. The Enterprise Agreement is the sole source of the grounds for the termination of employment. The Enterprise Agreement provides that “Termination of employment can only be used in the event of proven unsatisfactory performance or Serious Misconduct” (cl 8). There is no power in cl 54 for JCU to take disciplinary action against an employee for serious misconduct unless that conduct falls within the definition in cl 8 — being any serious breach of the Code of Conduct (or as defined by the Fair Work Regulations 2009 (Cth) or the Crime and Misconduct Act 2001 (Qld)).
Clause 14 purports to place explicit prohibitions on particular conduct, including harassment, vilification, bullying or intimidation of others, failing to adhere to the highest standards of propriety and truthfulness in scholarship research and professional practice, representing opinions as those of JCU, and intentionally identifying themselves in association with their university appointment when contributing to public debate in their individual capacity. The Enterprise Agreement does not provide a mechanism for JCU to discipline a staff member for serious misconduct in breach of any of the prohibitions of cl 14. That is because the definition of “serious misconduct”, which triggers the disciplinary processes in cl 54.3, does not include a breach of the Enterprise Agreement. The fact that cl 14 commits JCU to act “in accordance with” the Code of Conduct is consistent with the overall framework of the Enterprise Agreement which provides for JCU’s commitment to protect and promote intellectual freedom, appropriately for different categories of staff within the University, and in a manner consistent with the ethical principles which guide the actions of staff as articulated in the Code of Conduct.
Clause 13 and the Code of Conduct are consistent and compatible with the Enterprise Agreement. The latter informs the content of the exercise of intellectual freedom; the former regulates the manner in which that freedom may be exercised within the framework of this particular Enterprise Agreement (which, it should be noted, has now been superseded by an enterprise agreement in different terms) and this particular Code of Conduct.
JCU did not contravene cl 14 of the Enterprise Agreement in taking disciplinary action against Professor Ridd on the basis of the breaches by him of the Code of Conduct, which were not contested in the Court below, nor in requiring him to comply with the standards of behaviour prescribed in the Code of Conduct. Contrary to the conclusion reached by the primary judge, none of the First – Fourth, Sixth – Eighth, Twelfth – Seventeenth Findings, the First and Second Speech Direction, nor the No Satire Direction was unlawful.
THE CONSTRUCTION OF CL 54.1.5
Clause 54.1 sets out the general principles relating to misconduct and serious misconduct. Clause 54.1.5 was relied on by JCU as one source of its power to direct Professor Ridd to keep the disciplinary processes confidential. Importantly, however, JCU also relied on a separate source of power to give such directions, namely that arising under the common law relating to an employee’s legal obligation to obey any reasonable and lawful direction given to the employee by the employer.
The drafting of cl 54.1.5 suffers from the same difficulties that attend the Enterprise Agreement as a whole. Its drafting confounds a straightforward construction. Clause 54.1.5 (which appears in Part G of the Enterprise Agreement, “Conduct and Disputes”) provides:
54.1 General principles
…
54.1.5 The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to JCU’s obligations:
(a) to discharge its responsibilities under an Act or University policy;
(b) for a proceeding in a court or tribunal; or
(c) unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected; or
(d) unless information is already in the public domain.
Clauses 54.2 and 54.3 describe the procedures and processes applying to concerns that a staff member has engaged in misconduct or serious misconduct. The processes contemplate the possible involvement of a broad range of persons in any such process, not limited to the person who is the subject of concern or any complainant. As will shortly emerge, the range of persons extends from the staff member’s line manager up to the Vice-Chancellor.
The primary judge held that the purpose of the cl 54.1.5 is to benefit and protect the employee (Ridd v James Cook University [2019] FCCA 997 [269]). He said that, “If it were the case that a staff member had confidentiality obligations, the clause would have been written to reflect that, which reinforces the conclusion that cl 54.1.5 did not mandate confidentiality obligations on a staff member” (Ridd v James Cook University [2019] FCCA 997 [277]).
The language used in cl 54.5.1 does not, in its express terms, impose an obligation on Professor Ridd to maintain confidentiality. On one view, the language used might be considered to denote the expression of an aspiration that something will occur, namely that the confidentiality of all parties will be respected. Alternatively, the use of the passive voice might be considered to bind all parties to a regime set out in the Enterprise Agreement. The context is critical. What matters (in accordance with the principles referred to in [65] above) is what the language used means in the context of the Enterprise Agreement as a whole.
While academic freedom has no settled definition, it is not devoid of meaning. One definition of “academic freedom”, contained in a 1997 UNESCO report, was considered and described in the French Review at p 119 as follows:
The elements of academic freedom thus defined, have been summarised as freedom of teaching, freedom of research, freedom of intra-mural expression and freedom of extra-mural expression.
The French Review also described ongoing debate about the limits and protection of academic freedom. It is against the background of such debate that cl 14 must be understood. In my opinion, each of the five matters set out as examples of intellectual freedom in cl 14.2 is capable of being described as an aspect of academic freedom, although the last three also extend to non-academic staff.
The specific inclusion of cl 14 in the Enterprise Agreement recognises the importance of intellectual freedom, including academic freedom, to the fabric of JCU as a university and to the work of its staff. That is why JCU committed under cl 14.1 to acting in a manner consistent with protecting and promoting intellectual freedom. At the same time, cl 14 recognises that intellectual freedom is not absolute, and there must be a balance between the exercise of that freedom and the standards of conduct required under the Code of Conduct. Accordingly, cll 14.3 to 14.7 describe limits upon the exercise of intellectual freedom.
However, the limits in cll 14.3 to 14.7 have no force of themselves. Those limits tend to be expressed as expectations, rather than obligations which may found a breach of the Enterprise Agreement by staff members. For example, the language used includes, “responsibility to respect the rights of others”, “should seek to raise their concerns”, “must adhere to the highest standards of propriety and truthfulness”, and “expects that staff will maintain professional standards”. The Enterprise Agreement envisages that limits of the kinds described in cll 14.3 to 14.7 will be enforced through disciplinary action taken under cl 54 for Misconduct or Serious Misconduct. In order to constitute Misconduct or Serious Misconduct, conduct will usually, although not inevitably, require a breach of the Code of Conduct. Such an approach is consistent with JCU’s commitment under cl 14.1 to enforce the Code of Conduct.
There will be a conflict between JCU’s twin commitments under cl 14.1 where a staff member exercises intellectual freedom and, at the same time, is alleged to have breached the standards set out in the Code of Conduct. In some circumstances this may be inevitable. Principle 1 of the Code of Conduct requires staff to, “criticise and challenge in the collegial and academic spirit of the search for knowledge, understanding and truth”, while Principle 2 requires staff to, “behave in a way that upholds the…good reputation of the University”, and Principle 3 requires staff to “treat fellow staff members…with…respect and courtesy”. But it is difficult to see, for example, how an academic could make a genuine allegation that a colleague has engaged in academic fraud without being uncollegial, disrespectful and discourteous and adversely affecting JCU’s good reputation.
The issue is how the Enterprise Agreement resolves conflicts between JCU’s commitment under cl 14.1 to enforce the Code of Conduct and its conjunctive commitment to protect and promote intellectual freedom. The answer is found in cl 13.3, which indicates that cl 14 limits the scope, operation and effect of the Code of Conduct. Clause 14 does so by giving primacy to JCU’s commitment to protect and promote intellectual freedom over its commitment to enforce the Code of Conduct. Where there is conflict, the former prevails to the extent of the inconsistency. In such a case, JCU cannot proceed with disciplinary proceedings for Misconduct or Serious Misconduct based on a breach of the Code of Conduct.
Under this construction, where a staff member claims that he or she is protected under cl 14, it is necessary for the JCU decision-maker, or a court, considering an allegation of Misconduct or Serious Misconduct based on a breach of the Code of Conduct to engage in a three-step process. First, it must be determined whether the staff member was genuinely engaged in an exercise of intellectual freedom, which will require identification of how that freedom is said to have been exercised. Second, it must be determined whether the staff member may have breached the Code of Conduct, and in what manner. Third, it must be determined whether there is a conflict between the particular exercise of intellectual freedom identified and the particular requirement of the Code of Conduct that is alleged to have been breached, such that prosecuting the disciplinary proceedings will be inconsistent with JCU’s obligation to protect and promote intellectual freedom within the University. The conflict must be a “real conflict”: cf Jemena Asset Management (3) Pty Ltd v Coinvest Ltd at [41]–[42]. If it is, the exercise of intellectual freedom prevails and JCU cannot complete disciplinary proceedings for Misconduct or Serious Misconduct. In the absence of such conflict, the staff member may be proceeded against for Misconduct or Serious Misconduct. Seen in this way, cll 14.3 to 14.7 provide examples of breaches of the Code of Conduct which might result in a staff member being guilty of Misconduct or Serious Misconduct despite the exercise of intellectual freedom, or at least describe expectations of appropriate behaviour. It may be acknowledged that there will be a degree of subjectivity involved in the assessment, but the broad description of intellectual freedom and the vaguely expressed requirements of the Code of Conduct mean that an evaluative judgment will often be required.
It may be noted that under this construction, the exercise of intellectual freedom does not stand in the way of disciplinary action for Serious Misconduct constituted by “official misconduct” within s 15 of the CMA, or “serious misconduct” within reg 1.07 of the FWR.
I will later consider the consequences for the appeal of the construction that I accept to be the correct construction of cll 13, 14 and 54.
THE PRIMARY JUDGE’S REASONS FOR FINDING THAT CLAUSE 54.1.5 OF THE ENTERPRISE AGREEMENT DID NOT IMPOSE AN OBLIGATION OF CONFIDENTIALITY ON PROFESSOR RIDD
Clause 54 describes the procedural and substantive steps for investigating and dealing with allegations of Misconduct and Serious Misconduct. Clause 54.1.5 deals with confidentiality in the management of allegations of Misconduct and Serious Misconduct in the following terms:
54.1.5The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to JCU’s obligations:
(a)to discharge its responsibilities under an Act or University policy;
(b)for a proceeding in a court or tribunal; or
(c)unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected; or
(d)unless information is already in the public domain.
JCU issued Professor Ridd with a number of directions requiring him to maintain the confidentiality of the disciplinary processes. For example, by letter dated 8 February 2018, Professor Ridd was directed to keep, “all matters relating to this disciplinary process strictly confidential, including the existence of the disciplinary process, details of the allegations, this letter, your response and any further correspondence between yourself and the University in relation to this matter”. The letter asserted that the source of the power to give such directions was cl 54.1.5 of the Enterprise Agreement.
The findings of Serious Misconduct made against Professor Ridd included that he had breached the Code of Conduct by failing to comply with lawful and reasonable directions to keep information relating to the disciplinary processes confidential.
The primary judge held that cl 54.1.5 of the Enterprise Agreement did not give JCU power to issue the confidentiality directions. His Honour decided, firstly, that the clause exists solely for the protection of the staff member against whom the allegations of Misconduct or Serious Misconduct are made. Secondly, his Honour considered that the requirement is only that the confidentiality of all parties, “will be respected”, and that does not create any obligation of confidentiality. Thirdly, his Honour held that any obligation of confidentiality is limited to “all information gathered and recorded”, whereas the confidentiality directions went further by requiring the disciplinary process itself to be confidential. Further, his Honour held that taking disciplinary action for non-compliance with the directions contravened the protection of intellectual freedom requirement under cl 14.
I will first consider the primary judge’s construction of cl 54.1.5. I think it is well understood that confidentiality obligations in respect of disciplinary processes generally exist to protect, not only the person against whom the allegation is made, but also others involved in the process. Such persons include complainants and witnesses who might otherwise be exposed to embarrassment or opprobrium by others. That may readily be understood, for example, in the context of sexual or other harassment. Unless the confidentiality of such persons is protected, they may be discouraged from coming forward or cooperating. It is in the interests of any organisation that misconduct be exposed and dealt with.
Clause 54.1.5 expressly provides that, “confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected” (emphasis added). That indicates that the clause applies not only to the staff member against whom the allegation is made, but also to other people involved, including the complainant and witnesses. Therefore, I do not agree with the primary judge’s characterisation of the clause as existing only for the protection of the staff member who is the subject of the allegation.
It is true, as the primary judge noted, that the language used at the commencement of the chapeau to cl 54.1.5 is that, “confidentiality…will be respected”, and does not expressly impose an obligation to maintain confidentiality. However, the next part of the chapeau reads, “all information gathered and recorded will remain confidential”, which clearly imposes an obligation of confidentiality. It would be inconsistent for there to be an obligation of confidentiality in respect of “information gathered and recorded”, but otherwise no obligation, and only an expectation, in respect of the “confidentiality of all parties”. The chapeau should be understood as having a consistent meaning, such that there is also an obligation to maintain the confidentiality of all parties involved.
However, I agree with the primary judge that the obligation of confidentiality under cl 54.1.5 does not extend to a requirement for the person who is the subject of the disciplinary process to not disclose the fact or existence of the process. The clause is expressly directed to the confidentiality of “all parties” and “all information gathered and recorded”. It cannot be understood as imposing an obligation on the person accused of Misconduct or Serious Misconduct to “respect” his or her own entitlement to confidentiality. In my opinion, the clause does not prevent the person accused from disclosing the existence of the process, so long as he or she does not disclose any matter that would allow, for example, the identity of the complainant to reasonably be ascertained. To construe the clause otherwise would reveal a Kafkaesque scenario of a person secretly accused and secretly found guilty of a disciplinary offence but unable to reveal, under threat of further secret charges being brought, that he or she had ever been charged and found guilty.
The majority judges have observed that cl 54.1.5, particularly the words and syntax commencing with the words “subject to JCU’s obligations”, is clumsy. It is arguable that the drafting is not merely clumsy, but contains an obvious and unintended typographical and syntactical error.
As the majority judges observe, although the clause reads as if paras (a) to (d) should each identify an obligation imposed upon JCU, only para (a) does so squarely. The clause may have been intended to read as follows:
54.1.5 The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to
JCU’s obligations:(a)JCU’s obligations to discharge its responsibilities under an Act or University policy;
(b)for a proceeding in a court or tribunal; or
(c)unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected; or
(d)unless information is already in the public domain.
In Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182, the Full Court held at [20], “It ought also be presumed that [the relevant clause] was intended to be effective and produce a sensible industrial outcome”. A reading of cl 54.1.5 in the manner suggested would operate to produce a sensible industrial outcome, although perhaps a less grammatical one, whereas there does not appear to be any sensible reason for the existing drafting of the clause. This construction would mean that the exceptions to the requirement of confidentiality in paras (b), (c) and (d) would not merely apply to JCU, but also to the person the subject of disciplinary proceedings. Otherwise, for example, where a person to whom the confidential information relates consents to disclosure of information, or the information is in the public domain, JCU is entitled to disclose it, but a staff member who discloses the same information would breach the Enterprise Agreement and may also be found to have engaged in Serious Misconduct. It seems unlikely that the clause could have been intended to operate in such an unbalanced manner.
This construction would require rewriting of the clause. However, that may not be fatal if it is clear that the original drafting was the product of a typographical or syntactical error. Even in a statute, that may sometimes be permitted: see Director of Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630. It may be more readily done in an enterprise agreement. In George A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498, Street J held at 503:
…it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result…from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.
[cited in City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379].
Further, in Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed at 184:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
I recognise that this possible construction of cl 54.1.5 was not argued by the parties, nor did they have an opportunity to address that construction. Therefore, I will not decide whether or not it is the correct construction. This approach does not affect the orders I propose, since the validity of disciplinary action taken for a breach of the Code of Conduct by failing to comply with the confidentiality directions depends upon the application of cl 14 under its proper construction, and that matter should, in any event, be remitted.
JCU raised an argument before the primary judge that it was entitled to give Professor Ridd the confidentiality directions under the common law right of an employer to give lawful and reasonable directions to an employee. The primary judge stated that the argument was not pressed and decided that, in any event, the common law right was overridden by cl 14 of the Enterprise Agreement on the proper construction of that clause. His Honour’s construction of cl 14 has not been upheld in the appeal, and it is apparent JCU had in fact continued to rely upon its common law entitlement.
The common law obligation of an employee to comply with a direction given by his or her employer depends upon the reasonableness of the direction. In R v The Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44; 60 CLR 601, Dixon J (as his Honour was then) said at 621–2:
Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
…
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled
The primary judge did not determine whether the confidentiality directions given were reasonable, even though that was an issue in dispute on the pleadings. Further, the question of what is reasonable must be determined in light of the requirements of the Enterprise Agreement, including cll 14 and 54.1.5, properly construed. These are issues that require full argument, which was not provided in the appeal.
In addition, there is a question of whether the common law obligation was modified by the provisions of the Enterprise Agreement, including cll 14 and 54.1.5, upon their proper construction.
OTHER MATTERS
I agree with the reasons of the majority judges concerning damages.
As to penalty, I agree with the majority judges that the primary judge erred in imposing a penalty of $125,000. However, upon the assumption of JCU’s conduct involving the unlawful termination of the employment of a long-standing employee because he was exercising intellectual freedom of the very type which JCU had agreed to protect, I do not agree that $15,000 would be adequate to reflect the seriousness of the conduct.
THE APPROPRIATE ORDERS
I have accepted that the primary judge wrongly construed cll 13 and 14 of the Enterprise Agreement. His Honour ought to have instead construed the clauses to mean that where there is conflict between a genuine exercise of intellectual freedom and a requirement of the Code of Conduct, the former prevails to the extent of the inconsistency. This means that where disciplinary action for breach of the Code of Conduct is inconsistent with JCU’s obligation to protect and promote intellectual freedom, JCU cannot take or complete such disciplinary action.
The primary judge examined whether Professor Ridd was engaged in exercising intellectual freedom in respect of each relevant allegation. However, once that question was answered in favour of Professor Ridd, his Honour concluded there could be no breach of the Code of Conduct and he could not be guilty of Misconduct or Serious Misconduct. Instead, his Honour should have made a comparison between each particular exercise of intellectual freedom and each corresponding admitted breach of the Code of Conduct and decided whether there was conflict which required JCU not to take disciplinary proceedings for Misconduct or Serious Misconduct. That exercise was not done. I should add that I do not agree with the view of the majority judges that it is “clear” that some aspects of Professor Ridd’s conduct cannot be characterised as the exercise of intellectual freedom — that issue becomes less clear when his conduct is examined in the context of the course of events as a whole.
The primary judge also misconstrued some aspects of cl 54.1.5 of the Enterprise Agreement when considering the findings of Serious Misconduct based on Professor Ridd’s failure to comply with the confidentiality directions. However, his Honour was correct to find that Professor Ridd was not prevented from disclosing the existence of the disciplinary process. In addition, the breaches of the Code of Conduct constituted by failing to comply with the confidentiality directions fall to be examined in light of cl 14 under its correct construction.
The question of whether Professor Ridd was required to comply with the confidentiality directions under JCU’s common law right to give lawful and reasonable directions also falls to be determined in light of the correct construction of cll 14 and 54.1.5.
The ultimate determination to terminate Professor Ridd’s employment was the product of a cumulative assessment, in the sense that the reasons of the delegate of the Senior Deputy Vice-Chancellor relied upon the initial formal censure and then the final censure having been issued to conclude that termination was warranted. I do not think that it is appropriate to finally determine only some of the factual issues in the appeal, when they are all interlinked with the proper application of the Enterprise Agreement upon its proper construction.
The appeal should be allowed and the orders of the primary judge should be set aside. In my respectful opinion, the proceeding should not be dismissed, but the matter should be remitted to the Federal Circuit Court for a new hearing upon the same evidence.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 22 July 2020
166
16
12