The interaction between the Enterprise Agreement and the Code of Conduct
63 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]).
64 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]).
65 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]).
66 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.
67 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.
68 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.
69 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.
70 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.
71 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".
72 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.
73 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.
74 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".
75 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:
6.1 The parties agree that the Supported Wage System for People with Disabilities Policy will form part of this agreement.
6.2 All 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).
6.3 If there is any inconsistency between the guidelines and policies and the express terms of this Agreement, this Agreement will apply.
76 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.
77 Clause 6 does not operate to preclude the incorporation by reference of the Code of Conduct into the Enterprise Agreement.
78 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.
79 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.
80 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.
81 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.
82 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.
83 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.
84 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.
85 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.
86 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.
87 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.
88 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).
89 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]).
90 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.
91 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).
92 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.
93 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).
94 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)
95 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.
96 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.
97 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.
98 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".
99 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.
100 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.
101 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)).
102 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.
103 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.
104 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.