Australia: Restricting employees' speech and political activities can be reasonable and lawful

Clayton Utz Insights
Last Updated: 14 December 2014
Article by Michael Byrnes

Key Points:

If you want to restrict employees' political activities or public comment, any restriction must be a reasonable and lawful direction.

The rise of social media has given employees a greater ability to share their views with the world on a range of matters, including grievances about their employment. This can sometimes even extend to purporting to represent their employer on matters of controversy.

Restrictions on political activities or public comment by employees might seem to be Orwellian overreach, but such restrictions can, in some circumstances, have an important role to play in preserving business reputation and workplace harmony. Which restrictions are legitimate and which ones cross the line? A recent case in the Fair Work Commission is an instructive example of the way these restrictions can be a reasonable and lawful direction (AGL Loy Yang v Construction, Forestry, Mining and Energy Union [2014] FWC 8093).

The origins of the dispute

The dispute related to the mandatory completion of all compliance modules issued by AGL Loy Yang to employees, including an AGL Code of Conduct. The CFMEU objected to the Code training module as, in completing the relevant module, employees were obliged to formally agree to be bound by the expectations in the Code.

The CFMEU claimed that certain provisions were "unnecessarily wide, oppressive and impractical". It told its members the Code module would only be acceptable if the mandatory agreement was removed, and then told them not to complete the Code module.

The Commission examined whether it is reasonable and lawful to require employees:

  • to agree to a ban on providing information, making public comment or political activity;
  • to answer certain questions in the Code module; and
  • to tick a box declaring they had understood the Code at the end of the module.

Restriction on providing information

The CFMEU argued that it was not reasonable or lawful to require employees to consent to the following parts of the Code:

  • Not disclose to any person outside AGL information obtained from the performance of our jobs unless we are expressly authorised to do so by the person who provided the information or the information is already in the public domain or the law requires the information be made available to the person requesting it.
  • employees being banned from providing to "any person" information "obtained from the performance of [their] jobs, unless it is already in the public domain

AGL Loy Yang argued these parts of the Code were directed at safeguarding personal information and ensuring employee compliance with confidentiality obligations placed on AGL Loy Yang, despite the word "information" not being specifically qualified by the word "confidential" .

Commissioner Michelle Bissett said that, upon reading the Code in its entirety, the restriction on disclosing information only related to confidential material. Thus, the requirement was not "unnecessarily wide, oppressive and impractical". She held that:

"There is nothing in the Code that suggests an employee cannot discuss any information arising from work with his or her doctor, lawyer or partner, rather the Code seeks to protect confidential information gained through employment"

Restriction on public comment and political activity

The Code also restricted employees from making "public comment about any matter, or participate in any political activities, which can be attributed to [their] employment with AGL".

The Commissioner found the restriction "difficult" as "employees at AGL Loy Yang are members of, and have a right to participate in the democratic process of, civil society. This freedom includes the right to express political views and make public comment".

The Commissioner was particularly concerned with any restriction on public comment and political activity by AGL Loy Yang if it restricted employees from participating in legitimate activities associated with their union membership, such as industrial action, of which AGL Loy Yang may disapprove.

However, she regarded the Code as only restricting public comment or political activity that can be attributed to the employees' employment with AGL Loy Yang. It did not seek to limit employees' engagement in their private time in political activity or making a public comment as a private citizen. Therefore, it was not unreasonable for AGL Loy Yang to protect its reputation by ensuring that comments and activities related to AGL Loy Yang came from authorised representatives.

Answering questions in the Code

Employees were asked:

  • which ethical behaviour best applied to AGL Loy Yang;
  • how AGL Loy Yang best maintains professionalism; and
  • whether AGL Loy Yang considers the broader corporate and social impacts of their decisions.

These questions, the CFMEU argued, were unreasonable as they required employees "to accept the premise of each of the questions".

The Commissioner disagreed. Respectively, they did no more than:

  • restate what the Code said;
  • asks employees to identify what is in the Code; and
  • ask the employee if they understand this is what AGL says.

Direction to complete the declaration in the Code

Upon completing the Code module, employees must tick a box that says "I have read and understood the AGL Code of Conduct, and agree to abide by it".

AGL Loy Yang argued that the declaration was to help it track who had, or had not, completed the module. Given that it did not require a declaration for other important training modules, it was clear that AGL Loy Yang did not need a declaration to have knowledge of the completion of the Code.

The Commissioner said that the declaration went "further than is reasonable" because a reading of the Code does not always mean an employee fully understands the contents of the Code, the extent to which he or she is bound by the Code or the implications of a breach of the Code.

Were the restrictions within the scope of the contract of employment?

The Commission noted that "employment does not entail the total subordination of an employee's autonomy". However, the restraints were held to be in relation to the employee's employment. It was not a restraint on what the employee could do in their own time. As long as they had a "reasonable connection with work", the restraints were lawful and within the scope of the contract of employment.

Lessons for employers

Workplace policies – including social media policies – need to reconcile employees' right to make legitimate private comments and employers' right to protect their interests and reputation. This decision shows that they will be scrutinised closely, so ambit claims should be avoided. It's crucial to link the comment to the employment and show that the restriction is a reasonable one.

Employers should also be careful with the tick-a-box declaration at the end of training, especially where the employee is certifying that they understand the contents and agree to be bound. Declarations like this ought to be made only when it's reasonable to ask for them, and employees have a chance to obtain clarification.

Generally, employers should seek legal advice when imposing restrictions and issuing directions to their employees that might potentially seek to curtail the exercise of private rights.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.