From the Australian – Ellie Dudley 3rd August 2023

Employment lawyers have sounded the alarm over an influx of disputes between workers and their employers who do not agree on the proposed Indigenous voice to parliament, warning employees to be careful posting political content on social media or risk losing their jobs.

Companies such as Qantas, Clayton Utz, Transurban, BHP, Rio Tinto, NAB, Woolworths and Lendlease have publicly endorsed the voice and will advocate for the Yes campaign in the lead up to the referendum at the tail end of this year.

Swaab workplace relations partner Michael Byrnes told The Australian employees with an opinion that differed from the public stance of their company will be a “flashpoint” for employment law as the votes nears.

“If we live in a society where employees have to mirror the views of their employer then this becomes a complete dystopia,” he said. “Say I was a Qantas employee, and I posted on social media account something anti-voice, and the social media account identified me as a Qantas employee. That could be cause for disciplinary action.”

Mr Brynes, who has worked in the industry for more than 20 years, said employers must navigate what constitutes unlawfully forcing a worker to support the company’s stance on the voice – be it for or against – and what is legally allowed. “Obviously an employer can’t direct an employee as to how they vote or direct employees to wear shirts or engage in activities that actively promote the voice,” he said. “But it could extend to directing them to an information session, because even if you don’t agree with the voice you can still go to an information session.”

Employment law silk Jeffrey Phillips SC said he expected legal disputes to arise in the same fashion they did during the same-sex marriage plebiscite.

In 2017 small business owner Madlin Sims sacked a staff member who came out in support of the “no” campaign against same-sex marriage. At the same time. Ms Sims, who runs a party entertainment company in Canberra, said she was taking a stance on the issue, likening it to employing a staff member who posted racist material online. The sacked contractor was a woman who took photos of events often posted them on Facebook.

“Today I fired a staff member who made it public knowledge that they feel ‘it’s okay to vote no’,” Ms Sims wrote on social media in September 2017. “Advertising your desire to vote no for SSM is, in my eyes, hate speech. Voting no is homophobic. Advertising your homophobia is hate speech. As a business owner I can’t have somebody who publicly represents my business posting hate speech online.

Mr Phillips said it was “inevitable” instances like this would repeat themselves throughout the voice campaigns. “Especially if you work for one of these large corporations and don’t align with their values,” he said. “It’s a potential flashpoint, there’s no doubt about that. Any employer would need to handle it sensibly and many wouldn’t be able to do so.”

 

Jeffrey Phillips, SC

State Chambers