D.5 Consideration
126 There are three clauses under the heading "Intellectual Freedom", namely cll 315 to 317. They are repeated for convenience:
INTELLECTUAL FREEDOM
315 The Parties are committed to the protection and promotion of intellectual freedom, including the rights of:
(a) Academic staff to engage in the free and responsible pursuit of all aspects of knowledge and culture through independent research, and to the dissemination of the outcomes of research in discussion, in teaching, as publications and creative works and in public debate; and
(b) Academic, Professional and English Language Teaching staff to:
(i) participate in the representative institutions of governance within the University in accordance with the statutes, rules and terms of reference of the institutions;
(ii) express opinions about the operation of the University and higher education policy in general;
(iii) participate in professional and representative bodies, including Unions, and to engage in community service without fear of harassment, intimidation or unfair treatment in their employment; and
(iv) express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation.
316 The Parties will encourage and support transparency in the pursuit of intellectual freedom within its governing and administrative bodies, including through the ability to make protected disclosures in accordance with relevant legislation.
317 The Parties will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.
127 A number of aspects of cl 315 should be noted. First, as a matter of ordinary language, the first sentence is a statement of commitment to protect and promote intellectual freedom. That a clause opens with language of "commitment" is not a bar to concluding that the clause might otherwise impose an enforceable obligation. The following clause was considered in National Tertiary Education Union v La Trobe University (2015) 254 IR 238:
The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.
128 No member of the Court held that the statement of commitment in the first sentence created an enforceable right. Jessup J (at [30], [35]) considered that the second sentence of the clause also did not create a binding obligation. However, Bromberg J (at [67], [91]) and White J (at [110]) considered that the second sentence did create an enforceable obligation: the first sentence introduced the subject matter and made a statement of aspiration; the second sentence created a binding obligation. Justice White observed at [108]-[109]:
[108] Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 2-4 of the Fair Work Act 2009 (Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the clause].
[109] That does not mean that parties to an enterprise agreement may not include in their agreement some matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements. Clearly, they may: Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297 at [19]-[22] …
129 In the present case the statement of commitment is included in the same sentence as that said by the applicants to create enforceable rights. It is not in terms which suggest an enforceable right to intellectual freedom.
130 Secondly, the language of cl 315 can be contrasted with language found elsewhere in the 2018 Agreement which, as a matter of ordinary language, expressly creates rights and obligations. As noted earlier, cll 306 and 309, for example, state:
306 Staff must comply with the Codes of Conduct (as defined in clause 3).
…
309 Staff must co-operate with the University and comply with all reasonable directions of the University directed at preventing, responding to or minimising the risk of workplace bullying.
131 Thirdly, the concept "intellectual freedom" is not exhaustively defined in cl 315. However, much of the concept is defined. The phrase "including the rights of" introduces what is included within the concept "intellectual freedom". That which the parties are committed to protecting and promoting includes the "rights" identified.
132 Fourthly, cl 315 recognises the existence of the identified "rights". There would be no point in protecting and promoting "rights" which did not exist. As a matter of express language, cl 315 does not create the "rights" identified. It assumes the existence of the "rights".
133 Fifthly, cl 315 contains requirements which must be satisfied before conduct could constitute the exercise of intellectual freedom and it contains what might be referred to as limitations. In respect of the "right" in para (a) of cl 315, for example, the "right" is to engage in the "free and responsible pursuit of all aspects of knowledge and culture". If the pursuit of knowledge in a particular case were not "responsible", the pursuit would not fall within para (a). Likewise, the pursuit of knowledge is "through independent research". Paragraph (b)(iii) contains an express limitation in providing that the "right" to "express unpopular or controversial views" is subject to the proviso "that in doing so staff must not engage in harassment, vilification or intimidation". That proviso only applies to para (b)(iii). It does not apply to the other "rights" identified in cl 315.
134 Sixthly, leaving aside whether cl 315 gives rise to legally enforceable "rights", cl 315 does not expressly state that the "rights" mentioned in the clause, with or without the internal limitations, are ones which may be exercised in all circumstances. Rather, there is merely a commitment to protect and promote intellectual freedom including the "rights" identified in the clause. At a general level, there will be situations where conflicting commitments arise and where one must give way to the other. At a more specific level, there is no express statement in the 2018 Agreement that cl 384 is subject to the "rights" identified in cl 315 as ones which the parties are committed to protecting and promoting.
135 Seventhly, cl 317 - which also appears under the heading "intellectual freedom" - is important to the construction of cl 315. Clause 315 as a matter of ordinary language contains a statement of commitment. On the other hand, cl 317 states that the parties "will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards" (emphasis added). The word "will" is language which, in the context of an enterprise agreement, implies the parties intended to create enforceable rights and obligations: La Trobe University at [110]. Four points should be made about cl 317:
(1) First, cl 317 recognises the existence of the right to intellectual freedom. The right to intellectual freedom to which it refers is that defined by cl 315.
(2) Secondly, cl 317 contains a statement that the parties "will uphold" the principle and practice of the right to intellectual freedom. Clause 317 creates an obligation to uphold the principle and practice of the right to intellectual freedom including the "rights" identified in cl 315.
(3) Thirdly, cl 317 requires that the manner in which the "rights" comprising "intellectual freedom" are to be upheld and "practiced" (or exercised) must be in accordance with "the highest ethical, professional and legal standards". Clause 317 contains an enforceable or binding obligation which applies to the University as employer and to those exercising the right to intellectual freedom, including the University's employees.
(4) Fourthly, the matters just referred to indicate that:
(a) the Codes of Conduct and other University policies apply to conduct which might otherwise be described as an exercise of "intellectual freedom". Such documents constitute or contain relevant "standards";
(b) the exercise of a right to intellectual freedom is not, of its nature, immune from the processes contemplated by cl 384.
136 In amplification of the last point, if for the purposes of cl 384, "a staff member's Supervisor or a relevant Delegate becomes aware of allegations that the staff member may have engaged in Misconduct or Serious Misconduct", the processes in cl 384 may be engaged notwithstanding that the allegations relate to conduct which might be an exercise of intellectual freedom which falls within that concept as defined in cl 315. There is no necessary inconsistency between cll 315 to 317 and cl 384. Nor is there any necessary inconsistency between cll 315 to 317 and cl 306.
137 In the context of cl 306, the applicants raised cll 13 and 14 which provide:
RELATIONSHIP TO OTHER AGREEMENTS, AWARDS AND POLICIES
13 This Agreement is a closed and comprehensive agreement and wholly displaces any awards and agreements which, but for the operation of this Agreement, would apply.
14 Policies, guidelines, procedures and Codes of Conduct of the University, whether referred to in this Agreement or not, do not form part of this Agreement. The University will consult with the Joint Consultative Committee and through the University's collegial processes in relation to the introduction or amendment of policies, guidelines, procedures and Codes of Conduct that have a significant and substantial impact on matters pertaining to the employment of staff under this Agreement, including for example, policies dealing with recruitment and selection, performance planning and development, performance management and academic promotion.
138 As the applicants emphasised, cl 14 has the consequence that the Codes of Conduct and University policies do not form part of the 2018 Agreement. The applicants submitted that cl 306 could not operate to require an employee to comply with the Code of Conduct to the extent that the Code of Conduct is inconsistent with a right the employee has under the 2018 Agreement. Accordingly, the applicants submitted, if cl 315 creates a right to intellectual freedom, an employee would not need to comply with the Code of Conduct to the extent that compliance with the Code of Conduct would be inconsistent with an exercise of the right to intellectual freedom.
139 It is correct that the Codes of Conduct and University policies do not form part of the 2018 Agreement. However:
(1) First, cl 14 contemplates the existence of the Codes of Conduct and policies whether referred to in the 2018 Agreement or not.
(2) Secondly, cl 14 recognises that policies and Codes of Conduct may have a significant and substantial impact on matters pertaining to the employment of staff under the 2018 Agreement, including by way of policies dealing with performance management.
(3) Thirdly, and importantly, whilst the Codes of Conduct referred to in cl 306 do not form part of the 2018 Agreement by reason of cl 14, the obligation to comply with the Codes of Conduct created by cl 306 does form part of the 2018 Agreement - cf: Australian Rail, Tram & Bus Industry Union v KDR Victoria Pty Ltd (t/as Yarra Trams) [2014] FCAFC 24 at [9].
140 Having regard to the matters referred to above:
(1) I accept the University's submission that cl 315 is not capable of being contravened because it does not create any enforceable obligation. Clause 315 contains:
(a) a statement of commitment to protect and promote the right to intellectual freedom; and
(b) an identification of what is included in the right to intellectual freedom.
(2) Clause 317 does create obligations enforceable according to its terms. For example, if a university directed an academic to teach a course in line only with the views expressed by a particular political party and not in accordance with the academic's independent research, a breach of cl 317 might be established. The likely conclusion would be that the university had not "uph[e]ld the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards".
(3) Clause 317 does not give rise to an unfettered or unqualified enforceable right to exercise intellectual freedom of a kind which falls within cl 315. Rather, so far as it concerns the exercise of the right to intellectual freedom, cl 317 requires that the manner in which the right is "practiced" must be in accordance with "the highest ethical, professional and legal standards".
(4) I reject the applicants' argument that an exercise of intellectual freedom cannot constitute "misconduct" or "serious misconduct" within the meaning of cl 3 of the 2018 Agreement. Clause 315 does not recognise, and cl 317 does not give rise to, "rights" the exercise of which cannot constitute "misconduct" or "serious misconduct" or which cannot be the subject of the processes contemplated by cl 384.
(5) Where it is asserted that particular conduct constitutes the exercise of intellectual freedom within the meaning cl 315, the question whether the conduct involves "misconduct" or "serious misconduct", if it arises, must be answered by reference to all of the circumstances including the fact that cl 317 creates an obligation to "uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards". Those standards might be reflected in Codes of Conduct with which staff must comply by reason of cl 306.
(6) Clause 315 does not identify as part of the concept of intellectual freedom a general and unfettered "right" to make whatever comment one might wish to make on the basis that the making of a comment involves an intellectual process. The concept of "intellectual freedom" as used in the 2018 Agreement is not the same as free speech. It is significantly more limited.
141 The applicants did not plead a case based on cl 317 creating an enforceable right to intellectual freedom. In its submissions, the University recognised that cl 317 created obligations which would be inconsistent with the unfettered right to intellectual freedom which the applicants contended was created by cl 315. If the applicants had pleaded a case based on breach of cl 317, the result would not have been any different.