Employ­ees & the Employ­er Posi­tion on the Voice in Parliament

Many sig­nif­i­cant organ­i­sa­tions, includ­ing large employ­ers, have adopt­ed a cor­po­rate posi­tion on the Abo­rig­i­nal and Tor­res Strait Islander Voice Ref­er­en­dum (Voice). It seems the vast major­i­ty of organ­i­sa­tions that have declared a posi­tion are in favour of the Voice, most recent­ly the Aus­tralian Olympic Com­mit­tee (AOC) Exec­u­tive and AOC Ath­letes’ Com­mis­sion, and the Nation­al Rug­by League. Oth­er organ­i­sa­tions report­ed to sup­port the Voice include NAB, Com­mon­wealth Bank, ANZ, BHP, Rio Tin­to, Wes­farm­ers, Wool­worths, and Coles. 

On the oth­er hand, there have also been cor­po­rate sup­port­ers of the No cam­paign, some of whom have donat­ed to the Advance group which will be one of the organ­i­sa­tions cam­paign­ing against the Voice. 

The adop­tion of a cor­po­rate posi­tion gives rise to an inter­est­ing ques­tion: what if an employ­ee holds a dif­fer­ent view to that of their employ­er on the Voice? 

In that sit­u­a­tion, how do the duties and oblig­a­tions the employ­ee owes the employ­er inter­act with the employ­ee’s right to hold and express a dif­fer­ent viewpoint?

Some of the issues that can arise are explored below (with the usu­al but impor­tant caveat that this is a gen­er­al analy­sis rather than con­sti­tut­ing spe­cif­ic advice).

Express­ing a view con­trary to that of the employer 

Can an employ­ee express a view on the Voice that is con­trary to the pub­lic posi­tion adopt­ed by their employer? 

Gen­er­al­ly speak­ing, the answer will be yes, but some cau­tion needs to be exercised. 

First, if an employ­ee is express­ing per­son­al or pri­vate views that are con­trary to those held by their employ­er, it should ide­al­ly be done in a way that makes it clear the view being expressed is a pri­vate or per­son­al view, not con­nect­ed with employ­ment. To this end, on some plat­forms such as Twit­ter or Face­book, an employ­ee should take steps such as not refer­ring to their employ­ment or employ­er on their account and includ­ing a dis­claimer to the effect that the views expressed on the account are per­son­al. Con­sis­ten­cy is essen­tial – such a dis­claimer is of lit­tle or no val­ue if the employ­ee nev­er­the­less posts or tweets about employ­ment-relat­ed mat­ters on that account. An employ­ee can’t have it both ways. 

In that regard, an expres­sion of a con­trary view on LinkedIn might be unwise, as the plat­form is pri­mar­i­ly a pro­fes­sion­al one where the account is usu­al­ly inex­tri­ca­bly linked with employ­ment. The dis­tanc­ing that can usu­al­ly help estab­lish and main­tain a delin­eation between the per­son­al and pro­fes­sion­al can­not be as eas­i­ly observed. 

Sec­ond, in express­ing a view on the Voice, the employ­ee should take care not to be crit­i­cal of the fact the employ­er has tak­en a pub­lic stance. The usu­al pro­hi­bi­tion against pub­lic dis­par­age­ment of an employ­er still applies. To illus­trate the point (hope­ful­ly not too colour­ful­ly), an employ­ee describ­ing their employ­er as ​“woke virtue sig­nallers” for sup­port­ing the Voice, or ​“big­ot­ed ugly racists’ for oppos­ing the Voice, could find them­selves in trou­ble. In these (rather extreme but nev­er­the­less con­ceiv­able) exam­ples the prob­lem aris­es not from the expres­sion of sup­port or oppo­si­tion to the Voice per se, but the pub­lic dis­par­age­ment of their employer. 

In some states, there is also a spe­cif­ic pro­hi­bi­tion on dis­crim­i­nat­ing against employ­ees on the basis of ​‘polit­i­cal opin­ion’ (or polit­i­cal belief or activ­i­ty) which employ­ers need to con­sid­er before tak­ing action against employ­ees who express a par­tic­u­lar view on the Voice. (In those states, the pro­hi­bi­tion in sec­tion 351 of the Fair Work Act against dis­crim­i­na­tion on the ground of polit­i­cal opin­ion could also be enlivened.) That said, the con­clu­sion will usu­al­ly be the same as states with­out such dis­crim­i­na­tion laws – an appro­pri­ate­ly expressed per­son­al view will not pro­vide a basis for dis­ci­pli­nary action by the employ­er, but the dis­crim­i­na­tion laws will usu­al­ly not pro­tect an employ­ee who has gone beyond the mere expres­sion of a view on the Voice and engaged in pub­lic dis­par­age­ment of the employ­er for adopt­ing a position.

Par­tic­i­pa­tion in Voice activities

Some employ­ers are con­duct­ing infor­ma­tion ses­sions and oth­er activ­i­ties in rela­tion to the Voice; some such ses­sions are neu­tral but oth­ers mir­ror and pro­mote the pub­licly stat­ed posi­tion of the employer. 

This rais­es the ques­tion of whether an employ­ee can refuse to par­tic­i­pate in such activ­i­ties on the basis that they hold a dif­fer­ent view to that which might be pro­mot­ed dur­ing the course of those activities.

The answer to this ques­tion will usu­al­ly come down to whether the direc­tion from the employ­er to par­tic­i­pate is law­ful and rea­son­able. The direc­tion from the employ­er will almost invari­ably be law­ful. The more rel­e­vant and com­plex ques­tion is whether the direc­tion is reasonable. 

The inter­ac­tion between the per­son­al beliefs of an employ­ee and the direc­tion of an employ­er was explored in the Fair Work Com­mis­sion (FWC) unfair dis­missal case, Jovan Jovic and Fil­ip Markovic v Coop­ers Brew­ery Lim­it­ed [2022] FWC 1931 (Jovic), in which it was stat­ed by Deputy Pres­i­dent Col­man (at 81):

“There will be occa­sions where the exi­gen­cies of work col­lide with an employee’s per­son­al beliefs and require dif­fi­cult deci­sions to be made. It would be unrea­son­able to require work­ers to choose between their beliefs and their work with­out good reason.”

The Jovic case dealt with a work­place COVID-19 vac­ci­na­tion man­date to which objec­tions on the basis of reli­gious belief were raised by the employ­ees. In that con­text Deputy Pres­i­dent Col­man, in apply­ing his test set out above and uphold­ing the right of the employ­er to imple­ment the man­date, observed (at 81):

“…in this case, there were good rea­sons. The pol­i­cy was in line with ATA­GI and gov­ern­ment advice that vac­ci­na­tions reduced trans­mis­sion. It was direct­ed at the well­be­ing of all work­ers on site, espe­cial­ly those known to be immuno­com­pro­mised. It served the company’s legit­i­mate inter­ests in main­tain­ing con­ti­nu­ity of oper­a­tions. The pol­i­cy was respon­sive to iden­ti­fied risks. It was with­in rea­son­able bounds for the com­pa­ny to take the cau­tious approach that it did to the risk of trans­mis­sion, to require com­pli­ance with the pol­i­cy, and to decline to grant exemp­tions to the applicants.” 

As such, the health and safe­ty imper­a­tives of the COVID-19 vac­ci­na­tion man­date ren­dered it, in the cir­cum­stances of that case, to be rea­son­able, notwith­stand­ing the reli­gious objec­tion from the employees. 

With COVID-19 vac­ci­na­tion man­dates there is, essen­tial­ly, a bina­ry – there is a require­ment for the employ­ee to be vac­ci­nat­ed, and the employ­ee who has an objec­tion either choos­es to get vac­ci­nat­ed con­trary to their beliefs or not. 

When it comes to the Voice, the rea­son­able­ness of an employ­er’s direc­tion will depend on what the employ­er is direct­ing the employ­ee to do. Cru­cial­ly, there might not even be, as iden­ti­fied by Deputy Pres­i­dent Col­man in his test above, a require­ment for work­ers to choose between their beliefs and their work, in which case the ​‘good rea­son’ require­ment will not be enlivened. 

For exam­ple, a direc­tion that an employ­ee attend an infor­ma­tion ses­sion on the Voice, even if that infor­ma­tion ses­sion might be con­duct­ed in a man­ner that advo­cates for one side over anoth­er, does not require an employ­ee to choose their work over their beliefs – the employ­ee can lis­ten to the mate­r­i­al pre­sent­ed yet still act in a man­ner con­sis­tent with their beliefs. Attend­ing the ses­sions and lis­ten­ing is, by and large, a pas­sive exer­cise. Of course, in extreme cas­es, where the infor­ma­tion is pre­sent­ed in a way that trau­ma­tis­es or caus­es sig­nif­i­cant upset to employ­ees with an oppos­ing view, a direc­tion to attend (or remain) may not be reasonable. 

If an employ­er is going fur­ther, how­ev­er, and direct­ing employ­ees to give a com­mit­ment or under­tak­ing of some kind that they will vote a par­tic­u­lar way in the Voice ref­er­en­dum, or to active­ly advo­cate for that view in and/​or out­side the work­place, that could be forc­ing employ­ees with a con­trary view to make a choice between their work and beliefs. In most cas­es, employ­ers will not have a ​‘good rea­son’ to put employ­ees in such a posi­tion. Such a direc­tion would like­ly be unreasonable. 

An issue beyond the Voice

With com­pa­nies giv­ing increas­ing empha­sis to ESG (Envi­ron­ment, Social, and Gov­er­nance) con­sid­er­a­tions, and tak­ing a stand on var­i­ous social and polit­i­cal issues, there is increas­ing­ly the poten­tial for the per­son­al views of employ­ees to con­flict with the avowed posi­tion of the employ­er. While employ­ees owe employ­ers a range of duties (some express­ly stat­ed in an employ­ment con­tract, oth­ers implied by law), those duties gen­er­al­ly do not extend to mir­ror­ing the philo­soph­i­cal or ide­o­log­i­cal posi­tion of the employ­er on all mat­ters. There will like­ly be many future cas­es in the FWC (and oth­er courts and tri­bunals) exam­in­ing and deter­min­ing where the bal­ance lies between the employ­er’s right to advo­cate for a posi­tion on social issues, and the scope of the right of employ­ees to not be com­pelled by their employ­ers to act con­trary to their own per­son­al beliefs.