What the Jayson Gillham ruling means for free speech

Workers, and contractors in particular, have just had their free speech clipped

By Nikolai Haddad - employment lawyer and the Executive Director of the Civil Liberties Defence Centre

Source: www.jaysongillham.com

The Federal Court’s dismissal of pianist Jayson Gillham’s case against the Melbourne Symphony Orchestra (MSO) will have significant implications for artists and workplace rights more broadly.

Let’s break this down (and I’ll try keep the legal jargon to a minimum).

What happened

In August 2024, the MSO cancelled a scheduled recital of Gillham the morning after he introduced his performance of the piece “Witness” with a statement dedicated to journalists killed by Israel in Gaza.

Gillham took the MSO to court arguing that it contravened the general protections provisions of the Fair Work Act by taking adverse action against him because he expressed a political belief.

It is important to note that this was not an unfair dismissal case, as Gillham was an independent contractor, not an employee of MSO. The Fair Work Act is a federal law that normally applies to employees, but the general protections provisions – which make it unlawful for bosses to take adverse action against employees for exercising their workplace rights – applies to independent contractors as well.

Narrow interpretation of ‘workplace rights’

The Court did not accept that Gillham had a “workplace right” to be free from discrimination in the expression of his political views.

Gillham claimed his workplace right came from the Victorian Equal Opportunity Act (EEO Act), which makes political opinion discrimination unlawful. But the Court found that the EEO Act was not a workplace law as defined by the Fair Work Act – neither for contractors nor employees.

In other words, workplace rights cannot be sourced from State anti-discrimination laws for general protections claims in the federal Fair Work Act. They can only be sourced from the anti-discrimination provisions in the actual Fair Work Act. The problem with that? The Fair Work Act’s provisions concerning discrimination only cover employees, not contractors.

And in the space where the Fair Work Act does apply to contractors – the protection from adverse action for workplace rights – the Court also did not rule in Gillham’s favour. The Court accepted that the cancellation of Gillham’s performance was adverse action, but did not consider MSO’s other actions – such as sending a message to concert attendees apologising for Gillham’s statement – as adverse action, even though it accepted that this message had the potential to damage his reputation.

The Court reasoned that these subsequent actions were taken after MSO terminated his engagement. But at the time MSO took other actions, MSO and Gillham were negotiating his return to the stage, so it is at least arguable that his position as an independent contractor was impacted by the MSO’s actions. The Court didn’t come to this conclusion.

Was Gillham cancelled because of his political remarks?

A crucial finding in the Court’s decision was the clear distinction it made between Gillham’s political expression and the impact of the political expression on MSO’s business and reputation. The Court accepted the evidence of the MSO decision makers that they were concerned only with the consequences of Gillham’s statement on the MSO, rather than the political content of the statement itself.

It found that MSO had a policy of not supporting either side of the “Israel-Gaza conflict” and that it would have taken the same action had Gillham made pro-Israel remarks.

This is difficult to reconcile with the other evidence in this case. The MSO took the decision to cancel Gillham incredibly swiftly – at a meeting at 9:30am the morning after his recital. The MSO arguably expressed a pro-Israel position in its December 2023 statement on the war. The evidence also showed that certain MSO staff and board members involved in the actions against Gillham had pro-Israel positions and found Gillham’s statement “offensive”.

Consequences of the decision

This decision is a setback for workers’ freedom of speech.

The narrow interpretation of what is a workplace right effectively means that all workers – employees and contractors – will no longer be able to rely on State anti-discrimination laws when making general protections claims under the Fair Work Act. This applies not only to political opinion discrimination, but to all unlawful discrimination, including race, age, sex, disability and sexuality.

The Court also found that there is a custom or practice that classical musicians do not make statements on sensitive political or social issues from the stage without approval of the host.

So classical musicians are effectively prevented from making any personal statements of a topical nature on stage, without approval of their bosses. And bosses can now more easily argue that they dismissed or cancelled their workers because of the impact of their political expression, rather than the expression itself.

The bigger picture here is the inadequate free speech protections for workers – now further limited by this ruling. There is no individual right to freedom of speech in the Constitution and political opinion discrimination is not unlawful in New South Wales, South Australia or under federal anti-discrimination laws, so it’s even worse for workers in these two states.

The Court ruling makes clear the urgent need for a Human Rights Act and other reforms to protect our fundamental civil and political rights, which are fast eroding.

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