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.