Opinion
It’s dangerous to talk politics at work – especially if you want to keep your job
Paul O'Halloran
Employment Lawyer“There is only one way to avoid criticism: do nothing, say nothing, and be nothing,” goes the common saying that is often attributed to Aristotle but which actually comes from 19th century American writer Elbert Hubbard. Yet, in recent times, Australia’s largest employers have increasingly decided to take the opposite path.
To be viewed as good corporate citizens they have found a conscience, taking public positions on issues such as tax reform, mandatory vaccinations, fossil fuels and climate change. They have embraced diversity and inclusion initiatives and quotas. A few memorable examples include the AFL converting its football logo into the word “Yes” in support of marriage equality in 2017, and, in August 2023, Qantas announcing its support for the Indigenous Voice to parliament at an event attended by the prime minister.
Australians think that they have freedom of speech, but workplace laws tell another story. Credit: Getty Images/iStockphoto
Many workers expect their employers to take a stand on the issues of the day. The 2023 Edelman Trust Barometer survey shows an employer having “a societal impact” is a strong expectation or dealbreaker for 69 per cent of people considering a job, with candidates looking for businesses that reflect their personal values. But as consumers we are less convinced by corporate values. The Good Study 2024 survey found that while Australians overwhelmingly wanted companies to do good, only 39 per cent believed they should take a position on social and political issues, while 50 per cent said they would boycott a brand over its position on current wars and conflicts.
Where does this leave employees who might oppose the political “beliefs” of their employer, particularly if the topic is inherently important to the individual’s sense of self?
To date, employee attempts to admonish employers publicly for their values, or lack of them, have failed. In 2012, a public servant, Michaela Banerji, became so incensed by the immigration policies of her employer, the Department of Immigration and Citizenship, that she established an anonymous Twitter account in which she was highly critical of her employer. She was dismissed for breach of the public service values, and ultimately lost her case, with the High Court finding in 2019 she had no unfettered implied right or freedom of political expression, and that her opinions (even though anonymous) were contrary to the department she was serving.
Jayson Gillham has defended his comments at the MSO performance, saying “What I said was neither political nor a personal opinion but simply a statement of fact.”
Australian classical pianist Jayson Gillham has hired lawyers in preparation for legal action against the Melbourne Symphony Orchestra after it cancelled performances by him after he spoke at a concert about the deaths of journalists in Gaza, which he described as “targeted assassinations” and an “international war crime”.
It’s unlikely political commentary was an express term of the contract the MSO negotiated with Gillham, making justifying anything other than playing the piano problematic on legal grounds. I have some sympathy for Dolly Parton’s views on not insulting half your audience when making political comments. “Keep your mouth shut if you want to stay in show business,” was her advice when asked about Donald Trump recently.
Gillham was expressing his personal views about the conflict when the MSO had remained silent, but things become more complicated when it is the company purporting to voice the political opinion. Employees opposing the political “beliefs” of their employer can be placed in a precarious position if the topic is inherent to their self-identity. Suppose you work for a company taking an active pro-Israel or pro-Palestine stance. Your employer might issue directions to attend internal information sessions on the topic, request that you change your email signature to incorporate new corporate messaging, or ask that you share supportive content on LinkedIn. If you are actively opposed to the position, or simply wish to remain neutral, you may find yourself in an ethical quandary.
There are some untested provisions of the Fair Work Act 2009 providing protection for employees from “adverse action” based upon their political opinion. However, there have been no concluded cases to date. Numerous other decisions based on other workplace rights (like the right to engage in industrial activities) have failed where the employer has established the sole reason for dismissal was because the employee breached a corporate code of conduct while exercising their rights. For example, in 2014, the High Court determined that a CFMEU member who held up a sign at work featuring the word “scab” (referring to union members choosing not to strike) had breached BHP Coal’s code of conduct to treat fellow employees with “courtesy and respect” and was lawfully dismissed, even though he was lawfully striking at the time.
Herein lies the trap for employees – the codified corporate values in the form of the code of conduct, often imbedded in a contract of employment or workplace policies, is rarely seen before employment is commenced, but always relied upon by employers at the point of dismissal. These corporate codes of conduct can be so broad as to prohibit employees doing or saying anything that may expose the company to reputational damage, including arising from outside hours conduct in which there is a relevant connection to the employment. This means even expressing your political views on social media in your spare time might endanger your employment if it can be linked to your job.
While free speech is important for most individuals, there is no constitutional right to it in Australia. I think employers really do face a quite impossible task democratising political opinions at work. Workplace anarchy would ensue if there were no consequences for political expressions that may objectively offend others. The restriction of political views at work is necessary to create an inclusive, respectful and compliant workplace. Employers have responsibilities under anti-discrimination legislation to ensure these obligations are maintained in areas such as racism, ageism, sexism, sexual harassment and disability discrimination.
Corporate statements of values have a downside for employers too when companies don’t practise what they preach. In the United States, there has been an increase in legal action by shareholders alleging directors and officers of public companies have violated fiduciary duties to uphold diversity and equity promises made publicly about workforce and board diversity. Legal action to date covers grounds such as inadequate gender diversity on boards, discriminatory hiring practices and failures to combat gender pay gaps.
Unless the law develops to expansively protect political opinions at work, employees wanting job security should think twice about criticising their employer’s public values or political stance, and perhaps look for ways to canvass concerns internally.
Paul O’Halloran is an employment law partner at law firm Dentons Australia.
The Opinion newsletter is a weekly wrap of views that will challenge, champion and inform your own. Sign up here.