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

Kate Eastman SC and Yaseen Shariff SC recently appeared for the successful respondents in National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 in the Federal Court of Australia (Thawley J). His Honour dismissed claims that the University had contravened the Fair Work Act 2009 in giving warnings to (and ultimately terminating the employment of) Dr Anderson on the ground of misconduct following a series of social media posts and public comments made by the academic. Dr Anderson’s posts had attracted substantial media attention.

Justice Thawley found that whilst the University’s enterprise agreement made provision for “intellectual freedom”, it did not give rise to an unfettered or unqualified enforceable right and was subject to requirements to practice that right in accordance with “the highest ethical, professional and legal standards” including those in the University’s Code of Conduct. His Honour in this regard accepted the respondents’ submissions as to the proper construction of the enterprise agreement. His Honour further found that it was open to the University to invoke the disciplinary processes under the enterprise agreement and to conclude that there had been misconduct by Dr Anderson.

His Honour separately noted that there was ongoing debate as to the proper interpretation of s 341 of the Fair Work Act 2009 (and in this regard referred to the decision of Bromberg J in Cummins) but declined to express a view on the matter on the basis that he was bound by PIA Mortgage Services. Justice Thawley accepted that the warnings given by the University made the Dr Anderson’s position “less secure” but found that the University had not taken that action because of any complaints made by Dr Anderson (assuming for that purpose that Dr Anderson had made “complaints”, which his Honour had separately found he had not).

A link to the judgment can be found here: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709.

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