How do workplace codes of conduct and enterprise agreements affect the academic exercise of intellectual freedom?
A recent decision of the Full Court of the Federal Court of Australia (the Appellate Court) highlights just how complex the interaction between workplace enterprise agreements and codes of conduct can be in particular circumstances. This decision involved the termination by James Cook University (JCU) of Professor Peter Ridd’s employment, following conduct he had engaged in over several years criticising climate science publications of his colleagues and JCU. Professor Ridd is a climate change denier and claimed his criticism was a protected exercise of his intellectual freedom. A 2-1 majority of the Appellate Court (Griffiths and SC Derrington JJ, Rangiah J dissenting) allowed an appeal from JCU, declaring that the primary judge erred in finding that the termination of Professor Ridd’s employment did not contravene the JCU Enterprise Agreement 2013-2016 (the Enterprise Agreement).
Facts
Professor Ridd was employed by JCU for 27 years until his employment was terminated on 2 May 2018 for serious misconduct. This termination followed 17 findings by JCU that Professor Ridd had breached the JCU Code of Conduct (the Code of Conduct) and the issuing of two speech directions, five confidentiality directions, a “no satire” direction and two censures.
These findings and directions stemmed from various courses of conduct engaged in by Professor Ridd where he criticised the scientific acumen and research of colleagues, a JCU research centre (the ARC Centre of Excellence in Coral Reef Studies), the Great Barrier Reef Marine Park Authority and the Australian Institute of Marine Science. One such course of conduct occurred on 1 August 2017 when Professor Ridd appeared on the Sky News television show “Jones & Co”. He was accused of “trashing” these organisations and JCU colleagues by claiming that we can “no longer trust” research published by them.
Decision at First Instance
At first instance, the Federal Circuit Court (the Trial Court) found that the Code of Conduct was not incorporated into the Enterprise Agreement, and accordingly that it was subordinate to clause 14 of the Enterprise Agreement, which protects the right of staff to exercise intellectual freedom. Consequently, breaches of the Code of Conduct could not provide a justification for termination as a result of a contravention of the Enterprise Agreement.
The Trial Court also accepted Professor Ridd’s argument, in respect of each of the findings of misconduct made against him, that he was exercising his right to intellectual freedom protected by clause 14 of the Enterprise Agreement. To the extent that none of his conduct harassed, vilified, bullied or intimidated those who disagreed with his views, which JCU conceded it did not, his conduct was protected by clause 14. By disciplining Professor Ridd for this conduct, JCU was found to have contravened the Enterprise Agreement.
Finally, the Trial Court accepted Professor Ridd’s argument that that clause 54.15 of the Enterprise Agreement, the clause which JCU relied on to make the confidentiality directions, is subject to clause 14. Accordingly, the issue of the confidentiality directions had the effect of prohibiting or limiting the future exercise of Professor Ridd’s intellectual freedom under clause 14. By giving those directions, JCU had contravened the Enterprise Agreement. The Trial Court similarly held that the “no satire” direction also had the effect of prohibiting or limiting the exercise of Professor Ridd’s intellectual freedom and also contravened clause 14 of the Enterprise Agreement.
Decision on Appeal
At first instance, and on appeal, Professor Ridd did not dispute that he had engaged in any of the conduct that led to JCU’s various findings and directions being issued. He also did not dispute the classification of that conduct as misconduct or serious misconduct, despite the Appellate Court’s finding that some of that conduct was “undoubtedly trivial”.
Consequently, the question to be decided on appeal was “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”.
The majority of the Appellate Court found that the Code of Conduct was incorporated into the Enterprise Agreement. In this regard, their Honours were particularly influenced by clause 13 of the Enterprise Agreement which expressly refers to the Code of Conduct as one of JCU’s commitments under the Enterprise Agreement. This differed from the Code of Conduct being considered a mere policy, procedure or guideline, which clause 6.2 of the Enterprise Agreement expressly provides are “not incorporated into nor form part of [the] Agreement”.
Further, the Appellate Court held that the construction of clause 14 urged by Professor Ridd, that the only constraint on the exercise of intellectual freedom is that it cannot harass, vilify, bully or intimidate others, did not flow naturally from a plain reading of the clause in its entirety. Accordingly, it was possible for the exercise of intellectual freedom to be constrained by another instrument(s), such as the Code of Conduct.
The majority of the Appellate Court also held that the standards of behaviour imposed by the Code of Conduct were not inconsistent with the protection of intellectual freedom pursuant to clause 14 of the Enterprise Agreement. Consequently, the standards of behaviour imposed by the Code of Conduct did in fact constrain the exercise of intellectual freedom.
On this point, Professor Ridd argued that clause 13.3, which states that the Code of Conduct is “not intended to detract from Clause 14”, is subordinate to clause 14.1, which indicated JCU’s commitment to act “in accordance with” the Code of Conduct. Rather than considering clause 13.3 to be subordinate to clause 14, the Appellate Court found that clause 14.1 provides the right to exercise intellectual freedom whilst the manner of its exercise is regulated by the Code of Conduct. Consequently, neither provision is subordinate to the other and the exercise of intellectual freedom protected by clause 14 is to be interpreted in accordance with the standards of behaviour imposed by the Code of Conduct.
Consequently, the Appellate Court found that clause 14 did not provide an unrestricted right for Professor Ridd to express his opinions in whatever manner he chose and that, in expressing his views, he was still subject to the behavioural standards imposed by the Code of Conduct.
As a result, and given that he did not dispute the point at first instance or on appeal, Professor Ridd was found to have breached the Enterprise Agreement. Breaching an enterprise agreement is a contravention of section 50 of the Fair Work Act 2009 (Cth) and attracts a civil penalty. However, the Appellate Court’s orders allowed Professor Ridd to file and serve a further notice of appeal and consequently no civil penalty was ordered in the circumstances.
Take Home Messages
Professor Ridd has been granted leave to appeal this decision to the High Court, so whilst this article reflects the current state of the law, the High Court may overturn this decision and restore the Trial Court’s position.
Nonetheless, this decision emphasises the complex interrelationship between the exercise of intellectual freedom, particularly in the academic sphere, and workplace codes of conduct and enterprise agreements. Academics, it appears, cannot justify any comments they make or behaviour they engage in, however controversial it may be, by simply claiming that the exercise of their intellectual freedom is protected. Instead, this behaviour remains subject to the conditions of their workplace codes of conduct and enterprise agreements and they can be disciplined accordingly for breaches of those instruments.
For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.
