Research Assignment

Ann-Marie is employed as a ‘Level E’ Professor by Monash pursuant to the Monash University Enterprise Agreement 2019 (EA) and a senior staff contract dated May 2016 (Contract). Clause 6.1 of the Contract stipulates that Ann-Marie is required to “faithfully serve and act in the interests of the University at all times”. Clause 6.2 of the Contract goes on to provide that “compliance with University policies and procedures is a condition of employment”. During Ann-Marie’s recruitment and induction process, she was provided with various University policies and required to sign an electronic acknowledgment confirming that she understood her obligations.

Ann-Marie teaches and researches in Monash’s College of Engineering & Science (College). Part of her role involves preparing grant applications and liaising with funding sources (mainly Government agencies) to ensure the financial sustainability of the College.

Ann-Marie’s main area of expertise is robotics, however, she is passionate about public health issues and environmental conservation. In addition to publishing articles on automation and artificial intelligence in peer-reviewed journals, Ann-Marie regularly writes op-ed pieces in The Age, appears on talk-back radio, and posts comments on Twitter.

Ann-Marie has received positive performance appraisals in previous annual reviews, partly because her public profile and social media following reflects well on the University. She has over 5,000 followers and has become somewhat of a social media ‘influencer’.

Over the past few months, Ann-Marie has been an outspoken critic of the Government's economic and medical response to COVID-19. Henry (the Dean of the College) has become increasingly worried about Ann-Marie’s public statements and outside activities.

On Monday 6 July 2020, Henry issued a formal warning to Ann-Marie on the basis that some of her comments on social media were not consistent with relevant University policies and Ann-Marie’s express and implied contractual obligations as a senior member of staff. The warning letter enclosed copies of the following organisational policies:

• Appropriate Workplace Behaviour Policy;

• Appropriate Use of Social Media Guideline; and

• Media Policy.

Ann-Marie was furious at what she perceived to be an infringement of her freedom of speech and academic integrity. She vented her frustration on Twitter accusing Monash of censorship and being "captive to right-wing political masters".

Ann-Marie posted a dozen tweets over the course of the week. One tweet mentioned a recent government grant which had not been publicly announced yet. This resulted in Henry receiving an angry call from Jessie, the Secretary of the Australian Government Department of Industry, Science, Energy and Resources (Department).

Last week, Ann-Marie was called-in to Henry’s office and told that she was being suspended from duty (on full pay) pending an investigation into her online activity. Ann-Marie protested, pointing out that her tweets were posted at night time using her personal iPad and she is entitled to the intellectual freedom protections in the EA.

Meanwhile, at the Department, Jessie is dealing with a sensitive staffing issue of her own. As part of its outreach activities, the Department runs a science education program called ‘Science Future’. The program is aimed at high school students and seeks to encourage young people to pursue a career in science.

The ‘Science Future’ program is delivered by a team of ‘educators’ who are engaged as independent contractors, generally for the duration of a school term. The educators have their own ABN and submit monthly invoices for services rendered. Most of them hold postgraduate qualifications in science and/or education. Educators receive a flat rate for each performance. They utilise projectors and props provided by the Department.

The program has been running for about 18 months. During that time, the educators have presented at approximately 200 schools across the country. On 20 July 2020, Jessie received a letter of demand from Colleen, one of the educators who has been with the program from the start. Colleen is claiming backpay for unpaid annual leave and overtime under the Live Performance Award 2010 (Award) on the basis that she is an employee of the Department.

Jessie acknowledges that Colleen has been a regular contributor to the Science Future program, but she is worried about setting a dangerous precedent for the other educators. The program is not really set up to accommodate ongoing employees.

Questions

1. What express and implied duties has Ann-Marie potentially breached? Discuss the interaction between the Contract, the EA and Monash policies

2. Is Colleen right in saying that she is an employee? Discuss the potential consequences for the Department of mischaracterising the work relationship