Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159 Appeal from: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709
File number(s): NSD 1373 of 2020
Judgment of: ALLSOP CJ, JAGOT AND RANGIAH JJ
Date of judgment: 31 August 2021
Catchwords: INDUSTRIAL LAW – university – right of intellectual freedom – whether primary judge erred in construction of right of intellectual freedom in enterprise agreement – whether primary judge erred in finding that exercise of intellectual freedom can constitute "misconduct" or "serious misconduct" within meaning of enterprise agreement – whether conduct in posting photo to social media was sufficiently connected to his employment to constitute "misconduct" – whether University gave lawful and reasonable instruction to remove photo – whether failing to remove photo constituted "misconduct" – appeal allowed – matters remitted to primary judge for hearing and determination.
Legislation: Fair Work Act 2009 (Cth) ss 50, 340, 539, 545
Cases cited: Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Downer EDI Limited v Gillies [2012] NSWCA 333; (2012) 92 ACSR 373 Eldridge v Wagga Wagga City Council [2021] NSWSC 312 James Cook University v Ridd [2020] FCAFC 123; (2020) 382 ALR 8 Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578 Mercer v Whall (1845) 5 QB 447 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272 Ridgway v Hungerford Market Company (1835) 3 AD & E 171 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177; (2009) 74 NSWLR 618
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