Federal Court of Australia National Tertiary Education Industry Union v University of Sydney (No 2) [2021] FCAFC 184 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: 21 October 2021 Catchwords: PRACTICE AND PROCEDURE — remittal of matter — identification of remaining issues for determination of liability — basis of remittal Legislation: Fair Work Act 2009 (Cth) ss 50, 340 Cases cited: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 20 Date of last submission/s: 21 September 2021 Date of hearing: Determined on the papers Counsel for the Appellants: Mr B Walker SC with Ms S Kelly Solicitor for the Appellants: National Tertiary Education Industry Union Counsel for the First Respondent: Ms K Eastman SC with Mr D Lloyd Solicitor for the First Respondent: Ashurst Australia ORDERS NSD 1373 of 2020 BETWEEN: NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Appellant TIM ANDERSON Second Appellant AND: UNIVERSITY OF SYDNEY First Respondent STEPHEN GARTON Second Respondent ANNAMARIE JAGOSE Third Respondent order made by: ALLSOP CJ, JAGOT AND RANGIAH JJ DATE OF ORDER: 21 OCTOBER 2021 THE COURT ORDERS THAT: 1. Stephen Garton and Annamarie Jagose be joined as the second and third respondents respectively to the appeal. 2. The proceeding be dismissed as against the third respondent, Annamarie Jagose. 3. The matter be remitted to the primary judge for determination: (a) in accordance with law; and (b) insofar as all issues other than relief and pecuniary penalties are concerned, on the basis of the existing evidence in the proceeding below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 These reasons for judgment concern the remittal of the proceeding to the primary judge. 2 In National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159; (2021) 392 ALR 252 (the principal judgment) we explained why the order of the primary judge dismissing the application for declarations, orders, reinstatement, compensation and pecuniary penalties in connection with alleged contraventions of s 50 of the Fair Work Act 2009 (Cth) had to be set aside, and the matter remitted to the primary judge for determination. We gave the parties an opportunity to make further submissions about the scope of the remittal. 3 These reasons for judgment are to be understood in the context of the principal judgment. Terms defined in the principal judgment take the same meaning in these reasons. 4 In their further submissions in chief, the appellants said: (a) they did not seek to amend the pleadings, (b) they accepted that Professors Garton and Jagose should be made parties to the appeal, and (c) the preliminary list of proposed issues to be determined as part of the remitted proceeding identified at [290] of the principal judgment should be reworked to reflect all of the remaining issues for determination. 5 In their further submissions in chief the University said: (a) while it was unnecessary to join Professor Jagose to the proceeding given that the case against her was abandoned, there was no objection to the course the Court proposed to ensure the dismissal of the claims against Professors Garton and Jagose, (b) given that the proceeding sought a civil penalty, the University was entitled to know the case against it with specificity and, as such, a second amended statement of claim should be filed detailing the alleged contraventions that remain in issue and removing those which are no longer in issue, (c) certain claims should not be remitted as they were finally determined by the primary judge or the Full Court, and (d) identifying issues for determination is not an appropriate replacement for pleadings. 6 The approach for which the University advocates cannot be accepted. As explained in the principal judgment, the problem which confronted the primary judge was not the pleadings but the inadequate assistance the primary judge received from the parties. As was also explained in the principal judgment, the case against the University has not changed. The idea that the University can now assert that the pleadings do not sufficiently expose the case put against it is untenable. Nothing has happened which would justify such a change of position by the University. No amendment to the pleadings is required. No further particulars should be ordered to be provided. 7 Nor would it be orthodox to now require the appellants to delete from the further amended statement of claim issues which have been determined. In any event, the paragraphs said to relate to the issues which are not part of the remittal are relevant to the determination of issues which remain, so the University's approach is not feasible. As the appellants submitted, the matter is being remitted to the primary judge and the appellants are entitled, in support of their claims under cl 315, and, in relation to the termination of Dr Anderson's employment under cl 384, to rely on all the pleaded facts. 8 The identification of issues remaining for determination in the principal judgment at [290] was intended to assist the parties and the primary judge to identify the scope of the matter, not to replace the pleadings as they exist, or the cases as put. 9 Further, and contrary to the University's submissions, the current position is clear: (1) Professors Garton and Jagose are necessary parties to the appeal and should have been joined from the outset; (2) it is agreed between the parties that the claims against Professor Jagose are to be dismissed, the only question being whether this Court or the primary judge should make that order; (3) the claims against Professor Garton alleging his accessorial liability for the University's alleged contravention of s 50 of the Fair Work Act as a result of its alleged breach of its obligations under the right of intellectual freedom provisions of the enterprise agreements have not been determined and remain part of the remitted proceeding. All other claims against Professor Garton have been determined against the appellants. As a result, it is not appropriate to dismiss the case as against Professor Garton; (4) the claims of contravention of s 340 of the Fair Work Act were determined against the appellants in the proceeding below and were not the subject of the appeal and therefore cannot be re-agitated as part of the remitted matter; (5) the claims that the University breached cll 309(d) and 384(d) in giving the First Warning and Final Warning respectively to Dr Anderson have been determined against the appellants and cannot be re-agitated as part of the remitted matter. This does not mean that the First Warning and Final Warning, and circumstances said to give rise to them, are immaterial to the case of the University having acted in breach of cl 384(d) in terminating Dr Anderson's employment; and (6) the issues of relief/penalties were to be the subject of a subsequent separate hearing below. The principal judgment relates only to liability issues. If liability is determined against the University and Professor Garton, the primary judge may make such orders as he thinks fit in respect of the remaining issues of relief/penalties. 10 The agreed position in respect of Professor Jagose warrants the making of an order for dismissal of the proceeding against her forthwith. We will make this order to bring the proceeding against Professor Jagose to an end as soon as possible. Subject to this, it is neither necessary nor appropriate for this Court or the primary judge to make orders now dismissing claims or aspects of claims. Further orders should await the determination of the liability issues. 11 For these reasons, the fact that the appellants' fall-back position is that they do not object to the Full Court making certain orders as the University proposed reflecting the current position in the proceeding is immaterial. The appellants' primary positon, that no such orders should be made at present, reflects the proper application of principle. 12 We remain of the view that the parties should not be permitted to file any further evidence in respect of the liability issues. The primary judge may give the parties an opportunity to make further written and oral submissions about these issues, having regard to the conclusions and observations in the principal judgment, as the primary judge thinks fit. 13 We do not propose to remit specific questions to the primary judge. As noted, the issues identified at [290] of the principal judgment were for the assistance of the parties and the primary judge. The appellants have proposed a more extensive range of issues in an annexure to their submissions. The University contends those issues should be amended. Whatever the issues we identify, ultimately, the issues relating to liability are to be determined by reference to all of the material before the primary judge relevant to the cases as put by the parties. Given that the parties remain unable to agree the issues which remain for determination it is appropriate we express further views to avoid unnecessary dispute below. 14 We set out below the appellants' list of issues with the University's proposed amendments shown in mark-up: The intellectual freedom case Did Dr Anderson exercise engage in intellectual freedom within the meaning of the enterprise agreement? (1) Did any one or more instances of the conduct (excluding the Lunch Photo), being the First Comments, Second Comments, Third Comments, Fourth Comments and Fifth Comments constitute the exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement or, as applicable, cll 254-256 of the 2013 agreement? If any instance of impugned conduct (excluding the Lunch Photo) did constitute the exercise of this right, then that conduct could not also be misconduct or serious misconduct. The University had no lawful right, power, or authority to discipline Dr Anderson or terminate Dr Anderson's employment on that basis either in whole or in part. First warning (2) If the answer to question 1 is "yes" in relation to either, or both, of the First Comments or the Second Comments did the University impose the First Warning on Dr Anderson in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with, cll 254-256 of the 2013 agreement? (3) If the answer to question (2) is "yes", did the respondent breach cll 254-256 of the 2013 agreement and thereby contravene s 50 of the FW Act by imposing the First Warning on Dr Anderson? If the University did impose the First Warning on that basis (in whole or in part) then the University necessarily did so in breach of its duty in 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (declarations and compensation) and 546 (pecuniary penalties). Final warning (4) If the answer to question 1 is "yes" in relation to any of the First Comments, Second Comments, Third Comments or Fourth Comments did the University impose Final Warning on Dr Anderson in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with, cll 315-317 of the 2018 agreement? (5) If the answer to question (4) is "yes", did the respondent breach cll 315-317 of the 2018 agreement and thereby contravene s 50 of the FW Act by imposing the Final Warning on Dr Anderson? If the University did impose the First Warning on that basis (in whole or in part) then the University necessarily did so in breach of its duty in 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 54 (declarations and compensation) and 546 (pecuniary penalties). Termination of employment (6) If the answer to question 1 is "yes" in relation to any of the First Comments, Second Comments, Third Comments, Fourth Comments or Fifth Comments, Ddid the University terminate Dr Anderson's employment in whole or in part based on any conduct which constituted the exercise of the right of intellectual freedom in accordance with cll 315-317 of the 2018 agreement or, as applicable, cll 254-256 of the 2013 agreement? (7) If the answer to question (6) is "yes", did the respondent breach cl 315 of the 2018 agreement and thereby contravene s 50 of the FW Act by terminating Dr Anderson's employment? If the University did terminate Dr Anderson's employment on that basis (in whole or in part) then the University necessarily did so in breach of its duties in cll 384(d)(iii) and 315 and, thereby, contravened s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (declarations, reinstatement, and compensation) and s 546 (pecuniary penalties). If the answer to question 6 is "no", it is necessary to answer the following questions: The Serious Misconduct Case (8) What was the sSerious mMisconduct on which the University relied to terminate Dr Anderson's employment? Specifically, did the University terminate Dr Anderson's employment based on: (a) all the conduct considered cumulatively constituting sSerious mMisconduct, or (b) instances of the conduct constituting sSerious mMisconduct? It is necessary to answer this question because, given that the University did not plead or argue an alternative basis for the termination being lawful (such as any one or more of the acts of impugned conduct in isolation), the primary judge must decide the basis of the termination. (9) Did the sSerious mMisconduct on which the University relied to terminate Dr Anderson's employment include, in whole or part, the Fourth Comments or the Fifth Comments? If the answer to this question is "yes", it is necessary to consider the next question. If this question is reached after questions (1)-(7) are dealt with and the answer to this question is "no", the amended originating application must be dismissed because the appellants did not otherwise challenge the fact that the conduct other than the fourth comments and the fifth comments was not, respectively, misconduct at all or serious misconduct. (10) If the answer to question (9) is "yes", did the conduct relied on by the University constitute sSerious mMisconduct? If the answer to this question is "yes", the termination of Dr Anderson's employment was lawful. If this question is reached after questions (1)-(7) are dealt with and the amended originating application must be dismissed. If the answer to this question is "no" the University had no lawful right, power or authority to terminate Dr Anderson's employment on that basis either in whole or in part. Termination of Dr Anderson's employment on that basis, in whole or part, would mean the University breached cl 384(d)(iii) and, thereby, s 50 of the Fair Work Act, enlivening the potential remedies in s 545 (reinstatement and compensation). (11) If the answer to question (10) is "no", did the respondent breach cl 384 of the 2018 agreement and by terminating Dr Anderson's employment? 15 Our comments on the amendments follow. 16 We see no reason to delete the observations in italics. They are intended to assist the parties and the primary judge. They reflect the conclusions in the principal judgment. 17 We disagree with the proposed change to question 3. The principal judgment explains why any focus on cll 254 and 315 in isolation from the related provisions in cll 255 and 256, and 316 and 317 respectively is meaningless. It is not to the point that the appellants only plead contraventions of cll 254 and 315. Determining breach of those provisions necessarily requires consideration of the other clauses. 18 For the same reasons we disagree with the proposed change to question 5. 19 We otherwise have no concern with the amendments proposed by the University. 20 On this basis: (a) the required orders for joinder of Professors Garton and Jagose should be made, (b) the order for dismissal of the proceeding against Professor Jagose should be made, (c) the matter should be remitted to the primary judge for determination in accordance with law and, insofar as all issues other than relief and pecuniary penalties are concerned, on the basis of the existing evidence in the proceeding below. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop, and Justices Jagot & Rangiah. Associate: Dated: 21 October 2021