Our right to express a political opinion is worth protecting

Alicia Pearce University of Technology, Sydney

On 31 August this year, the Full Bench of the Federal Court returned a critical judgement for intellectual and academic freedom in universities. The judgement upheld the principle that bargained rights in NTEU Enterprise Agreements give academic and professional staff the right to publicly express opinions, including on the state of job security and funding in the sector, without fear of adverse impact on their employment.

These rights had come under threat when, in the course of deciding whether University of Sydney academic Tim Anderson’s high-profile dismissal was justified, the primary judge in the case had made a startling error.

While the University of Sydney Enterprise Agreement contained clearly articulated commitments to intellectual freedom, including the right to 'express unpopular or controversial views', the initial judgement had upheld the University’s contention that the clause was 'merely a statement of commitment, or purely aspirational', rather than creating a legally enforceable workplace right.

As a result, the judgement suggested, there was no automatic protection to Dr Anderson’s employment if it was proven that the conduct leading to his termination was an expression of intellectual freedom.

If allowed to stand, this judgement had implications far beyond the Anderson case, with potentially serious consequences for university workers’ ability to speak out on public policy matters affecting their workplaces and work across the sector. However, as the full bench noted, the original decision had been flawed. The clause did create a workplace right, and it should be read in context of the rest of the Agreement. In fact, all University of Sydney staff – academic and general – are entitled to the protection of their Agreement in the exercise of this right, and to dispute attempts to terminate their employment due to its exercise. As the Full Bench noted:

'No matter what view is taken of Dr Anderson’s conduct, this case concerns his livelihood and profession. He is no more and no less entitled than anyone else to a fair determination of his application in accordance with law.'

What does intellectual freedom mean?

At many institutions, both academic and professional staff have a negotiated workplace right to intellectual freedom. These negotiated workplace rights formalise and expand the conventions of academic freedom and intellectual freedom that university staff have long assumed. As the French Review noted, these ‘Intellectual Freedom’ clauses have been bargained into union Enterprise Agreements at 36 institutions across Australia and are the main protection that staff rely on as they engage in critical enquiry, political debate and protest, and express sometimes unpopular opinions in public fora.

These rights can be accessed, enterprise by enterprise, so long as staff do not vilify or harass others. And the court has now held that University of Sydney staff members are protected from having their employment terminated if their employer does not agree with their views, provided that the rights in their Enterprise Agreement are properly exercised.

These bargained rights are unique in Australia, which in practice has very few employment protections for freedom of speech and political opinion. While Australia is signatory to international conventions that proscribe workplace discrimination on the basis of political opinion and trade union activity, under Federal law there is no court redress pathway for most people who believe they have suffered this discrimination.

States have better protections in some instances, for some employees. However large segments of the workforce – notably the public sector – are employed with inherent requirement of political neutrality in their role, and a recent High Court case re Banerji upheld that rank and file public servants can be fired for making public comment on political issues, in Banerji’s case, via an unidentified account on twitter. And in practice, without a transparent mechanism for redress, there is no real way of knowing how the private and corporate sector deal with these issues.

Not just academic freedom

As unique rights, these rights are worth defending and enhancing. At a time when the Government has maintained an active policy to refuse emergency funding to public universities, the bargained right to intellectual freedom underpins university employees’ ability to protest Government and employer decisions and express opinions on the shape of industry and educational policy, issues that fundamentally affect job security and the quality of higher education

Importantly, many of these Enterprise Agreement clauses are not, as many imagine, just an expression of the convention of academic freedom. Some create workplace rights that apply to both academic and professional staff, supporting political engagement of the whole workforce.

While the wording of the Enterprise Agreements varies between universities, the strongest Agreements create a right for Professional staff to express opinions, including unpopular or controversial opinions, without fear for their employment, allowing staff to participate as citizens in public debate on public issues.

Like the protections for academic freedom, this is usually subject to the important qualification that staff should not vilify or harass others.

For Professional and General staff this protection is particularly important. Professional staff make up more than half of the full-time equivalent university workforce and are more likely to be women.

Unlike Academic staff, who are increasingly trained by university employers in the use of social media to promote their work and personal brand to enhance reputation and employability, Professional staff are not explicitly encouraged to express public opinions on matters related to their work. Culturally, Professional staff operate in a different workplace environment to their academic staff peers.

In corporate parlance they work in cost centres – gathering and maintaining confidential business and workplace information, engaging in business-confidential processes, and managing backend systems. Professional staff workplace culture often resembles a corporate or bureaucratic cultural environment, and this culture can have a chilling effect on Professional staff engagement with political debate, particularly on social media.

Intellectual freedom is crucial to workforce activism

Both professional and academic staff cohorts must be able to participate in public debate and activism on the direction of the sector. In an environment where at least 40,000 sector jobs have been lost in the past eighteen months, and in a time when enterprise bargaining Agreements are currently up for negotiation, raising the voice of all university staff is critical in protecting and enhancing the function of universities as best practice employers, particularly of women, and as stewards of high quality public education.

The unique workplace rights in the Enterprise Agreements create an environment where this is possible and must be defended and protected. ◆

Alicia Pearce is a doctoral researcher at UTS Law and a unionist, and was a Professional staff officer managing workforce gender equity programs at UTS from 2016-2020