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Free speech at work? It's complicated

Free speech at work? It's complicated

Let’s cut to the chase: You don’t have “freedom of speech”, or at least not one that is explicitly protected by the constitution, as is the case in the United States.

Australia has what is called “implied freedom of political communication” – that is, the Government can’t make laws to restrict or breech your implied freedom.

In the workplace, you are also somewhat protected against discrimination on the basis of your politics. Under the Equal Opportunity Act 2010 (Vic) (the EOA), Victorian workers may have legal recourse if they are discriminated against in the course of employment if they hold political beliefs or engage in political activity.

Let’s break that down.

What makes it discrimination?

Discrimination is where a manager or colleague treats you unfavourably because of your political belief (eg., your opposition to war) or political actions (eg., your decision to attend a protest, wear a political button or put up posters in the workplace).

Treating you unfavourably could look like:

  • Rostering changes that disadvantage you financially or socially
  • Overlooking you for opportunities for advancement
  • Firing you or changing your work role negatively
  • Refusing to employ you
  • Paying you less or giving you worse conditions than other workers in the same role

BUT – all those things can happen without being discriminatory. To prove discrimination, you need to show that the unfavourable treatment occurred because of your political beliefs or actions.

Eg.,

  • Your roster was the same for years, but after a political discussion with your supervisor, they made a sudden change to disadvantage you. When you asked about it, they said they wanted to give the best shifts to people who agree with them on politics.
  • Your communication with your supervisor indicated you were due to be promoted, but after your political actions, they emailed you to say they would have to reconsider the promotion in light of your political choices.
  • After the CEO saw you speaking on TV about your politics, they decided to terminate you for bringing negative attention to the company.

What is not discrimination… or when is discrimination legal?

If, after expressing your political beliefs or actions, a colleague or manager changes their demeanour towards you – becomes less friendly or even acts with hostility – that’s generally not discrimination. If their behaviour towards you is repeatedly unreasonable it could constitute bullying – a serious OHS risk that you can also address.

Employer-specific policies or other considerations can also reduce your protection from discrimination. For example, lots of employers claim that their employees’ political expression can negatively affect the business through reputational damage. In the public sector, employee's are limited by a code of conduct that prohibits such expressions, particularly if they are in relation to government policy. If your employer issues a directive not to engage in certain conduct, you should seek advice before refusing to comply.

The manner of your political expression may also diminish your protection under the Equal Opportunity Act. If you engage in political activity that poses an OHS risk to others (for example, getting into an altercation with colleagues, customers or members of the public) your employer may lawfully discipline you because of the OHS risk.

What’s legal recourse?

Legal recourse in the case of discrimination could mean overturning your supervisor or colleague’s discriminatory actions – they change back your roster or give you back your job – or financial compensation for the discrimination, like payment of lost wages. But here’s where it gets difficult.

Just telling your employer “you’re discriminating against me, that’s illegal” is unlikely to get you anywhere. If the boss was prepared to discriminate against you in the first place, it’s unlikely they’ll change their mind just because you noticed.

However, scheduling a meeting with the boss and your union delegate or organiser may well be enough to change their tune. An email from the union (or from the Young Workers Centre) may give the boss enough of a fright to remedy your problem without everybody lawyering up.

If they dispute the charges you’ll have to prove the discrimination in court. Your union’s Industrial Officer may be able to support you, but keep in mind that proving discrimination can be difficult without a paper trail. Make sure to keep any communications that show discriminatory behaviour.  

So… I have rights? I can express my politics?

As all unionists know, you only have the rights you can enforce. Your political freedom in the workplace is ultimately determined by how staunchly your fellow workers are prepared to defend you and each other.

Part of that is strength in numbers, but union members may also have additional legal protections in expressing political views.

Many unionists have met to pass motions to compel their Union and employers to condemn the attacks by Israel on Palestine. For example, on 31 October 2023, the ANMF published a statement on ‘Middle East Conflict’ following demands from members. Many MEAA members also signed an open letter calling for improved coverage of the Israel-Hamas war. MEAA officials have since written to Nine, calling on them to refrain from targeting staff who signed.

Political expression at work comes with risks, but it's also essential to winning a better world. To do it more effectively without getting the sack, join your Union.

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