"Code of conduct". That’s code for ‘conduct yourself as we tell you’

A code of conduct is becoming an employer’s power trip

Ever since the ruling classes of East Germany shamelessly nicknamed the Berlin Wall the Antifaschistischer Schutzwall, the anti-fascist protection wall, it pays to check how those with power use words, pretending to protect us by restricting basic freedoms.

Those wielding power today favour deliberately innocuous labels to describe new institutional ramparts that limit basic freedoms. And nothing sounds more innocuous than a code of conduct.

Most read like bad poetry, sweet-sounding words linking lofty aspirations about how people should treat one another in a workplace. Codes of conduct have become a neat way to virtue-signal your political correctness too. No socially progressive word or phrase is left out, usually highly contestable, offering no great guidance for the reader or the employee.

Drawn up by ever-expanding human resources departments, these slick instruments are found inside just about every company, organisation, government body, sporting club or other group made up of more than a dozen people. Codes of conduct are sprouting like weeds, rarely trimmed for meaning, only ever augmented by more and more prose pickled in sugary sentiments.

But don’t be fooled by the vanilla label. Increasingly, a code of conduct is becoming an employer’s power trip, their weapon of choice in the workplace to limit the basic freedoms of employees. And these deliberately vague terms become expensive legal battles for sacked employees. Two examples in the past two weeks. Last week, Peter Ridd, the highly respected professor of physics, won his court case against James Cook University after he was sacked for offending the univer­sity’s code of conduct.

JCU used its code of conduct to full effect. When Ridd raised doubts about the quality of science claiming the Great Barrier Reef was being damaged, he was accused of misconduct, not acting in a collegial way, disparaging fellow academics, not upholding the integrity and good reputation of JCU. It made no difference to the code’s enforcers that Ridd raised his concerns in a polite and measured manner, making clear that fellow academics were honest, though mistaken, in their work.

When Ridd raised funds online to help pay for his expensive legal battle with JCU, the university accused him of breaching the code of conduct. When Ridd sent an email to a student, attaching a newspaper article headed “for your amusement", the physics professor of 30 years’ standing was censured for acting contrary to an earlier “no satire direction" when JCU told Ridd not to trivialise, satirise or parody the univer­sity’s disciplinary action against him. When Ridd mentioned JCU’s “Orwellian" attitude to free speech in an email to another supportive student, JCU censured him for another breach of the code of conduct.

Note that JCU discovered the offending email by trawling through Ridd’s correspondence in a distinctly Orwellian manner.

On it went. Actions and words parsed and censured, secrecy sought under JCU’s code of conduct to protect the university, not Ridd.

Last week, the Federal Court rejected JCU’s 17 claims against Ridd under the university’s code of conduct. Federal Court judge Salvatore Vasta made clear that JCU’s fundamental error was to assume its code of conduct “is the lens through which all behaviour must be viewed". Rather than starting from the principle of intellectual freedom set out in clause 14 of JCU’s enterprise agreement with academics, a core value that goes to the mission of a university, JCU used its lengthy and loquacious code of conduct to restrain Ridd. Therefore, it did not occur to JCU, or to academics who complained about Ridd, that the best response was to provide evidence Ridd’s claims were wrong. The enforcers chose censure and sacking over debate.

Rejecting JCU’s position, Vasta found the intellectual freedom clause is “the lens through which the behaviour of Professor Ridd must be viewed". The judge said intellectual freedom allows people to express opinions without fear of reprisal. That is how Charles Darwin broke free from the constraints of creationism and how Albert Einstein challenged the constraints of Newtonian physics.

JCU will surely appeal this decision. Other universities will also be hoping for a favourable legal determination that upholds their codes of conduct as the final word, trumping even an intellectual freedom clause in an enterprise agreement with academics.

All things considered then, we have reached a shameful state of affairs: university leaders spending hundreds of thousands of dollars to uphold coercive powers they have given themselves under codes of conduct but expending no intellectual effort in considering the need for a truly liberating charter of intellectual freedom such as that drawn up by the University of Chicago and adopted by dozens of other American colleges.

This augurs poorly for Wallabies star Israel Folau, sacked last week by Rugby Australia using its code of conduct. Folau’s sacking was, in many ways, inevitable. If a university cannot uphold basic freedoms for academics to express honestly held views, what hope for a sporting code?

Folau’s contract with RA does not include a freedom of expression clause, but neither does it include a clause telling him to stop posting offensive views on social media. In another messy, expensive and protracted legal battle, the basic right to free speech will depend on whether RA’s code of conduct is the final legal word on Folau’s future.

RA could have left it to us in civil society to exercise our powers of condemnation against Folau for his ignorant and divisive comments. We could have enlightened Folau that gay people do not deserve to be in hell for their sexuality. Instead, RA became the enforcer, turning a goose into a martyr by using the same clumsy stick JCU used against Ridd.

What grates, more generally, is the selective approach to who gets hung, drawn and quartered these days. The Australian is aware that senior ABC staff have raised concerns with ABC management about divisive statements made by some of their so-called “talent". Fairfax writer, ABC host and gay rights activist Benjamin Law happily tweeted during the same-sex marriage debate that he was “wondering if I’d hate-f..k all the anti-gay MPs in parliament if it meant they got the homophobia out of their system". A few years ago, Josh Szeps, now an ABC host, expressed his view during a YouTube chat with Joe Rogan that it should be legal for a woman to kill her unborn baby right up to nine months’ gestation, and sometimes after birth. Are these statements any less abhorrent than Folau’s views?

Vaguely drafted codes of conduct are a conduit for double standards. And that is why they are bogus legal instruments. Every law student is taught that contracts can be voided for uncertainty. A boss should only ever have power to adversely affect a person’s employment in the clearest and most precise circumstances. It is high time that proliferating codes of conduct are exposed as dangerously vague virtue-signalling instruments with a nasty kick to them, allowing bosses to terminate an employee at will.

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