Many significant organisations, including large employers, have adopted a corporate position on the Aboriginal and Torres Strait Islander Voice Referendum (Voice). It seems the vast majority of organisations that have declared a position are in favour of the Voice, most recently the Australian Olympic Committee (AOC) Executive and AOC Athletes' Commission, and the National Rugby League. Other organisations reported to support the Voice include NAB, Commonwealth Bank, ANZ, BHP, Rio Tinto, Wesfarmers, Woolworths, and Coles.
On the other hand, there have also been corporate supporters of the No campaign, some of whom have donated to the Advance group which will be one of the organisations campaigning against the Voice.
The adoption of a corporate position gives rise to an interesting question: what if an employee holds a different view to that of their employer on the Voice?
In that situation, how do the duties and obligations the employee owes the employer interact with the employee's right to hold and express a different viewpoint?
Some of the issues that can arise are explored below (with the usual but important caveat that this is a general analysis rather than constituting specific advice).
Expressing a view contrary to that of the employer
Can an employee express a view on the Voice that is contrary to the public position adopted by their employer?
Generally speaking, the answer will be yes, but some caution needs to be exercised.
First, if an employee is expressing personal or private views that are contrary to those held by their employer, it should ideally be done in a way that makes it clear the view being expressed is a private or personal view, not connected with employment. To this end, on some platforms such as Twitter or Facebook, an employee should take steps such as not referring to their employment or employer on their account and including a disclaimer to the effect that the views expressed on the account are personal. Consistency is essential - such a disclaimer is of little or no value if the employee nevertheless posts or tweets about employment-related matters on that account. An employee can't have it both ways.
In that regard, an expression of a contrary view on LinkedIn might be unwise, as the platform is primarily a professional one where the account is usually inextricably linked with employment. The distancing that can usually help establish and maintain a delineation between the personal and professional cannot be as easily observed.
Second, in expressing a view on the Voice, the employee should take care not to be critical of the fact the employer has taken a public stance. The usual prohibition against public disparagement of an employer still applies. To illustrate the point (hopefully not too colourfully), an employee describing their employer as "woke virtue signallers" for supporting the Voice, or "bigoted ugly racists' for opposing the Voice, could find themselves in trouble. In these (rather extreme but nevertheless conceivable) examples the problem arises not from the expression of support or opposition to the Voice per se, but the public disparagement of their employer.
In some states, there is also a specific prohibition on discriminating against employees on the basis of 'political opinion' (or political belief or activity) which employers need to consider before taking action against employees who express a particular view on the Voice. (In those states, the prohibition in section 351 of the Fair Work Act against discrimination on the ground of political opinion could also be enlivened.) That said, the conclusion will usually be the same as states without such discrimination laws - an appropriately expressed personal view will not provide a basis for disciplinary action by the employer, but the discrimination laws will usually not protect an employee who has gone beyond the mere expression of a view on the Voice and engaged in public disparagement of the employer for adopting a position.
Participation in Voice activities
Some employers are conducting information sessions and other activities in relation to the Voice; some such sessions are neutral but others mirror and promote the publicly stated position of the employer.
This raises the question of whether an employee can refuse to participate in such activities on the basis that they hold a different view to that which might be promoted during the course of those activities.
The answer to this question will usually come down to whether the direction from the employer to participate is lawful and reasonable. The direction from the employer will almost invariably be lawful. The more relevant and complex question is whether the direction is reasonable.
The interaction between the personal beliefs of an employee and the direction of an employer was explored in the Fair Work Commission (FWC) unfair dismissal case, Jovan Jovic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931 (Jovic), in which it was stated by Deputy President Colman (at 81):
"There will be occasions where the exigencies of work collide with an employee's personal beliefs and require difficult decisions to be made. It would be unreasonable to require workers to choose between their beliefs and their work without good reason."
The Jovic case dealt with a workplace COVID-19 vaccination mandate to which objections on the basis of religious belief were raised by the employees. In that context Deputy President Colman, in applying his test set out above and upholding the right of the employer to implement the mandate, observed (at 81):
"in this case, there were good reasons. The policy was in line with ATAGI and government advice that vaccinations reduced transmission. It was directed at the wellbeing of all workers on site, especially those known to be immunocompromised. It served the company's legitimate interests in maintaining continuity of operations. The policy was responsive to identified risks. It was within reasonable bounds for the company to take the cautious approach that it did to the risk of transmission, to require compliance with the policy, and to decline to grant exemptions to the applicants."
As such, the health and safety imperatives of the COVID-19 vaccination mandate rendered it, in the circumstances of that case, to be reasonable, notwithstanding the religious objection from the employees.
With COVID-19 vaccination mandates there is, essentially, a binary - there is a requirement for the employee to be vaccinated, and the employee who has an objection either chooses to get vaccinated contrary to their beliefs or not.
When it comes to the Voice, the reasonableness of an employer's direction will depend on what the employer is directing the employee to do. Crucially, there might not even be, as identified by Deputy President Colman in his test above, a requirement for workers to choose between their beliefs and their work, in which case the 'good reason' requirement will not be enlivened.
For example, a direction that an employee attend an information session on the Voice, even if that information session might be conducted in a manner that advocates for one side over another, does not require an employee to choose their work over their beliefs - the employee can listen to the material presented yet still act in a manner consistent with their beliefs. Attending the sessions and listening is, by and large, a passive exercise. Of course, in extreme cases, where the information is presented in a way that traumatises or causes significant upset to employees with an opposing view, a direction to attend (or remain) may not be reasonable.
If an employer is going further, however, and directing employees to give a commitment or undertaking of some kind that they will vote a particular way in the Voice referendum, or to actively advocate for that view in and/or outside the workplace, that could be forcing employees with a contrary view to make a choice between their work and beliefs. In most cases, employers will not have a 'good reason' to put employees in such a position. Such a direction would likely be unreasonable.
An issue beyond the Voice
With companies giving increasing emphasis to ESG (Environment, Social, and Governance) considerations, and taking a stand on various social and political issues, there is increasingly the potential for the personal views of employees to conflict with the avowed position of the employer. While employees owe employers a range of duties (some expressly stated in an employment contract, others implied by law), those duties generally do not extend to mirroring the philosophical or ideological position of the employer on all matters. There will likely be many future cases in the FWC (and other courts and tribunals) examining and determining where the balance lies between the employer's right to advocate for a position on social issues, and the scope of the right of employees to not be compelled by their employers to act contrary to their own personal beliefs.
For further information please contact:
Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au
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.