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Tag Archives: freedom of speech

He didn’t meme it – Fair Work Commission decision

The Full Bench of the Fair Work Commission has overturned the decision of Deputy President Binet which upheld BP’s sacking of an employee who had parodied BP’s position in enterprise bargaining by creating a “Hitler rant” meme, based on the popular source video from the 2004 World War II movie Downfall 

 The Full Bench found that DP Binet had incorrectly characterised the meme as drawing comparison between BP’s management and Hitler and the Nazi regime, a comparison the Deputy President said was “offensive” and justified dismissal.  

 Rather, the Full Bench said the video, which depicts Hitler’s realisation of Berlin’s imminent downfall and his ensuing rant at his subordinates, “has been used thousands of times” in internet culture to satirize contemporary situations. In the circumstances of this case, the Full bench said it had been used to satirically compare the demise facing Hitler in April 1945 with BP’s present position in enterprise bargaining.  

 That the Applicant Mr Tracey sought to criticize BP’s management through the meme was, the Full Bench said, “entirely understandable”, given that employees had been opposed to BP in negotiations for a lengthy period in a heated industrial context.  

 In the Full Bench’s opinion, anyone familiar with the meme would have known that its intent is not to draw a comparison between the object of the parody (in this case BP) and Hitler himself or the atrocities committed by the Nazi regime. 

 As there was no valid reason for dismissal, the Applicant succeeded in his appeal and was reinstated to his job at BP.  

 Other matters the Full Bench took into account included that the meme was originally circulated in a private facebook group amongst employees, and that the video did not personally denigrate any of the individual members of BP’s management team.  

 The union representing the Applicant described the Full Bench decision as “a victory for Aussie larrikinism”. 

 The decision demonstrates the Commission’s willingness to understand and engage with contemporary social and cultural norms in the internet era. 

 The full decision can be read at https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb820.htm 

 If you have any queries about communications in the workplace, or about any of your workplace rights, please do not hesitate to get in touch with us for a free, confidential consultation. 

$1.2 Million awarded – A win for academic freedom

Professor Ridd, the former head of the Physics department of James Cook University (JCU), was found to be unlawfully dismissed by JCU over criticism of prominent climate change research.

In 2015, Professor Ridd told a journalist that JCU needed to “check their facts before they spin their story” as “bad science” and misleading photos were were being circulated about climate change and its effect on the Great Barrier Reef.

Professor Ridd was sacked as he was found to have breached JCU’s code of conduct.

Justice Vasta found that the university’s code of conduct (which stipulates that staff are not to jeopardise the integrity or standing of the university or its reputation) was “subordinate” to an intellectual freedom clause in its 2013 enterprise agreement. Professor Ridd was awarded more than $1.2 million for multiple agreement breaches under the Fair Work Act.

Here was a summary of Justice Vasta’s findings:

  1. 17 misconduct findings as well as many censures, confidentially, speech and “no satire” directions enacted by the university were all found unlawful;
  2. JCU made a “fundamental error” in assuming that the code of conduct took precedents over JCU’s commitment to intellectual freedom in Clause 14 of the enterprise agreement; and
  3. Justice Vasta noted that it “may not always be possible to act collegiately when diametrically opposed views clash in the search for truth”.

National Tertiary Education Union (NTEU) has supported the finding whilst they do not support Professor Ridd’s views on climate change, they do believe it is crucial to “support his rights to academic freedom”.

Full case: Ridd v James Cook University [2019] FCCA 997