University of Sydney v National Tertiary Education Industry Union [2024] FCAFC 57

FEDERAL COURT OF AUSTRALIA

University of Sydney v National Tertiary Education Industry Union [2024] FCAFC 57 File number: NSD 1129 of 2022

Judgment of: PERRAM, LEE AND KENNETT JJ

Date of judgment: 17 May 2024

Catchwords: INDUSTRIAL LAW – university – right to intellectual freedom – appeal of remitter judgments – where primary judgment appealed to Full Court – where Full Court allowed appeal and remitted matters to primary judge for hearing and determination – alleged contravention of s 50 of the Fair Work Act 2009 (Cth) – whether open to appellant to raise issue of onus of proof where issue had not been substantively raised before primary judge, in the first appeal or on remittal – whether primary judge erred by proceeding on basis that appellant bore onus of proof – whether onus of proof discharged – whether primary judge gave adequate reasons – whether second respondent's comments constituted exercises of intellectual freedom – whether second respondent committed "serious misconduct" by disobeying lawful directions in making the comments that were alleged exercises of intellectual freedom

Legislation: Fair Work Act 2009 (Cth) ss 50, 340, 539, 545, 570 University of Sydney Act 1989 (NSW) s 6

Cases cited: Australian Pesticides and Veterinary Medicines Authority v Arnica Pty Ltd (No 2) [2022] FCA 815; 293 FCR 533 Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 Coulton v Holcombe (1986) 162 CLR 1 Fair Work Ombudsman v National Union of Workers [2019] FCA 1826 House v The King (1936) 55 CLR 499 Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709; 302 IR 272 National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159; 309 IR 159 National Tertiary Education Industry Union v University of Sydney [2022] FCA 1265; 318 IR 460 National Tertiary Education Industry Union v University of Sydney [2023] FCA 537 National Tertiary Education Industry Union v University of Sydney (No 2) [2021] FCAFC 184 Ridd v James Cook University [2021] HCA 32; 274 CLR 495 Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 Vines v Djordjevitch (1955) 91 CLR 512 Water Board v Moustakas (1988) 180 CLR 491