Politics at work - Lawyers Weekly

By Trent Hancock

The celebration of Australia Day has become an increasingly contentious issue among Australians, writes McDonald Murholme’s Trent Hancock.

Each year the debate around whether our national day should be held on 26 January seems to intensify. What happens though when this debate finds its way into the workplace?

While employers might be keen to “keep politics out of the workplace”, there are important statutory protections afforded to employees that must be kept in mind.

The first is the right to freedom of speech. Section 15 of the Charter of Human Rights and Responsibilities Act 2006(Vic) provides that every person has the right to hold an opinion without interference.

It also provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This freedom of expression does not however extend to certain conduct that is prohibited by the Racial and Religious Tolerance Act 2001 (Vic), such as inciting or encouraging hatred, serious contempt, revulsion or severe ridicule against another person or group of people because of their race and/or religion.

Beyond this, section 351 of the Fair Work Act 2009 (Cth) provides that an employer must not take adverse action against an employee because of their political opinion. A similar prohibition appears in the Equal Opportunity Act 2010 (Vic) with respect to a political belief or activity. In essence, these provisions prevent an employer from disciplining an employee because they hold a different political opinion to their employer.

An example of this arose in 2015 when McDonald Murholme represented former organiser Muhammad Ali Sayed in a claim under section 351 of the Fair Work Act 2009 (Cth) against the Construction, Forestry, Mining and Energy Union. In that case, Justice Mortimer of the Federal Court of Australia ultimately determined that the CFMEU had contravened section 351 of the Fair Work Act 2009 (Cth) by, among other things, dismissing Mr Sayed for reasons that included his membership of, and association with, the Socialist Alliance.

The protections afforded to employees in the Fair Work Act 2009 (Cth) do not however prohibit employers from disciplining employees who fail to comply with lawful and reasonable directions about workplace conduct. Often these directions will be incorporated into policies and procedures.

In the current digital landscape, employers are not only concerned about what is said at work, but also what is said online, including in an employee’s personal time. For this reason, employers will often have a social media policy governing what can and can’t be said by employees online. If the policy is reasonable, and an employer can demonstrate that its enforcement is necessary to protect its legitimate interests, a breach of the policy by an employee may gave rise to a valid reason to dismiss.

For example, in the now infamous case of Angela Williamson, a Cricket Australia employee who was dismissed for tweeting about abortion reform, Cricket Australia said in a statement that “[it] respects an individual’s right to their opinion. However, it expects that employees will refrain from making offensive comments that contravene the organisation’s social media policy”.

This highlights an important distinction between disciplinary action that is taken by an employer because of an employee’s political opinion, and disciplinary action that is taken because of a contravention of its policies and procedures. The former may be unlawful while the latter may not be.

For this reason, an employee must make themselves aware of such policies, particularly when they are likely to be the subject of disciplinary action as a result of making politically aligned comments either at work or online.

Incidentally, while the temptation of employers may be to silence employees from sparking controversial debate about Australia Day, employees are well within their right to exercise both their freedom of speech as well as the right to hold and discuss political opinions – even when they differ from others in the workplace.

Reference: ‘Politics at work’, Lawyers Weekly, Friday 25th January 2019.