Australia: Reheated retweets: The significance of a retweet in employment

Last Updated: 16 November 2018
Article by Michael Byrnes


In a recent case of the Fair Work Commission (FWC) (Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2018] FWC 6462), a ;'retweet' by a member of the FWC, Senior Deputy President Hamberger, formed the basis of a submission by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for Hamberger SDP to recuse himself from considering entry permit applications made by the union.

Before delving into an analysis of this decision and the broader considerations relating to ;'retweets', it is probably worth briefly explaining what is meant by a ;'retweet'. A retweet is defined as a re-posting of a tweet on the social media platform Twitter. The act of retweeting posts the original tweet to your followers. There is a specific, easily accessed function on the Twitter platform for retweeting. A user can retweet either with or without additional commentary to the original tweet.

In the CFMMEU case, the original tweet retweeted by Hamberger SDP was by the then Minister for Employment, Senator Michaelia Cash. That tweet included the text:'Labor gets millio ns from the CFMEU. That's why they're against restoring the ABCC. Bring back the ABCC'. The tweet also contained an image of Bill Shorten, the Leader of the Opposition, dressed as a cricketer and holding a bat in the air with the text, ;'CFMEU notches up 100 members before courts. A CENTURY of SHAME', superimposed on the image.

The CFMMEU submitted:

"The tweet expressly conveyed a message that was very critical of the CFMMEU. That is, the CFMMEU should be ashamed of its conduct, and the ALP ashamed of its affiliation with the ALP. Further, the tweet carried with it the imputation that because the CFMMEU had members currently involved in legal proceedings (as opposed to having acted unlawfully), it needed to be more closely scrutinised by a new regulatory body."

On this basis, the CFMMEU contended the retweet creates a reasonable apprehension of bias, meaning that, as Hamberger SDP, put it:

"...a fair-minded lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the determination of these applications for entry permits."

In reaching his conclusion, Hamberger SDP did not actually need to grapple with the general significance of retweets, but instead relied upon the fact that the retweet issue had been previously raised in a mention (but not subsequently pursued) in another matter on 27 July 2017:

"...since 27 July 2017, I have dealt with over 50 matters to which the CFMMEU (or its predecessor, the CFMEU) was a party (not including Full Bench matters where I was not the presiding Member). In none of these matters has there been any suggestion that I have acted other than impartially."

Hamberger SDP continued:

"I consider that this is sufficient to eradicate any reasonable apprehension of bias in relation to the applications currently under consideration. Accordingly, I have decided not to recuse myself from dealing with these applications."

What's in a Retweet?

While a retweet gave rise to the CFMMEU case, the general significance of retweets did not need to be explored to determine the reasonable apprehension of bias submission. It is, nevertheless, a useful catalyst to examine the issue.

The common assumption is that a retweet is effectively the same as composing and sending the original tweet itself. In other words, the act of retweeting is an unequivocal adoption of the original tweet. On that basis, if that tweet contains offensive or contentious content, anyone retweeting it is uncritically endorsing and propagating that content. For an employee subject to a social media policy that could potentially constitute a breach of that policy and form the basis for disciplinary action.

While that common assumption is a good starting point, it's not definitive. As always, procedural fairness in such situations will be imperative because an employee might argue there are circumstances surrounding the retweet that put a different complexion on it.

There are a number of such arguments or submissions that might potentially be raised:

  1. The retweet was not an endorsement: Some Twitter users actually have a message on their account profile stating that a retweet does not necessarily constitute an endorsement. Some retweets are simply for the purpose of passing on an item of potential interest.
  2. The retweet was an act of condemnation: Other retweets are for the purpose of drawing attention to a particularly offensive or egregious tweet, with a view to drawing censure or opprobrium to the original tweeter.
  3. Retweet and commentary: As mentioned above, the retweet function enables retweets both with and without commentary. Any commentary associated with the retweet needs to be considered. Employees who are concerned that a retweet without commentary might lead to a false inference of endorsement being drawn should consider adding commentary that reflects condemnation of the original tweet.
  4. The broader context: The context in which the retweet occurs, including other tweets by the employee and replies or comments to other tweeters relating to the retweet, can provide an insight into the motivation behind the retweet and might be a relevant factor to be considered by an employer before deciding on any action.

While the CFMMEU case did not end up squarely tackling the question of the meaning of a retweet, it is only a matter of time before the FWC will need to do so, most likely in the context of an unfair dismissal case. Similar principles arise from using the ;'share' function on Facebook, or even Twitter's ;'like' function (which some use as endorsement, others as more like a bookmark for interesting content). While endorsement might be a starting assumption, it may not necessarily be a sound conclusion.

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions