By Jack de Flamingh and Alice Johnson -
Snapshot
- Intellectual Freedom protected in an enterprise agreement is not general ‘freedom of speech’.
- Where a right to intellectual freedom is provided for in an enterprise agreement, it will be reasonable to limit this freedom to the employee’s specific field of expertise.
- The rights established within an enterprise agreement are unlikely to be constrained by corporate policy, unless the intended interrelationship between the documents is couched in clear terms within the agreement itself.
In our article ‘Freedom of Speech in a master/servant relationship’ (56 Law Society of NSW Journal, June 2019, 80-82), we discussed the first instance Federal Court decision in Ridd v James Cook University [2019] FCCA 997. At the time, the decision touched on a number of sensitive issues, but ultimately was expressed in the decision to turn on a narrow one – the proper construction of an ‘Intellectual Freedom’ clause in the James Cook University Enterprise Agreement 2013 (‘Agreement’). The first instance decision found that James Cook University (‘University’) had breached the Intellectual Freedom provisions of the Agreement on 13 occasions, and Dr Peter Ridd was awarded nearly $1.2 million in compensation.
Two and a half years later, and following the Full Federal Court’s finding on appeal that the University had not acted contrary to the Agreement, the High Court adopted a different analysis in determining the scope of the intellectual freedom protected by the Agreement. In its decision handed down on 13 October 2021 in Ridd v James Cook University [2021] HCA 32, the High Court narrowed the capacity of the University’s Code of Conduct (‘Code’) to constrain the intellectual freedoms in the Agreement. It held that the only constraints on the intellectual freedom were those contained in the intellectual freedom clause itself. Ultimately, though, Dr Ridd’s appeal was dismissed.
The decision in Ridd does not lay down any hard and fast rules of general application, being squarely cast in the context of university and the intellectual freedoms contained in the Agreement applying to its staff. It does, however, provide some insight into the interrelationship between rights in an enterprise agreement and other corporate policies intended to regulate employee conduct and the employee-employer relationship.
