With the referendum on the Indigenous Voice to Parliament on the horizon, HR could soon find their workplaces abuzz with political opinions. An employment law expert outlines some things to keep in mind.

At one point in time, we would have said there was no place for politics in the workplace. But now, expectations are shifting.

The most recent Edelman Trust Barometer shows that 75 per cent of people want their CEOs to take a stand to address discrimination, and 69 per cent of people want an organisation to have a strong social impact before they will consider working for them.

Not only can taking a public stance on social or environmental factors favourably impact attraction metrics, it can also be a boon to employee engagement. In 2019, Gartner’s global survey of over 30,000 people found that employees’ discretionary efforts were boosted by almost 20 per cent when companies spoke out about a relevant social issue.

However, taking a stand on issues publicly also poses plenty of risk for employers – especially if your employees hold a different opinion to you. With the Abo­rig­i­nal and Tor­res Strait Islander Voice Ref­er­en­dum upcoming, it’s worth thinking about how and when to take a public stand on politically fraught matters.

A right to publicly disagree

Many organ­i­sa­tions have adopt­ed a cor­po­rate posi­tion on the Voice Ref­er­en­dum, including the Nation­al Rug­by League, 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. 

This begs the question: should an employer publicly express their view on a social or political matter that could be divisive amongst their employees? And what happens if employees choose to publicly oppose your take on the issue?

Employees’ right to express their views

If an employ­ee is express­ing per­son­al or pri­vate views that are con­trary to those held by their employ­er, HR and leadership should communicate that is needs to be done in a way that makes it clear the view being expressed is a pri­vate or per­son­al view, and not con­nect­ed with their employ­ment. 

Having a robust policy around social media is a good place to start. For example, your policy might stipulate that when using plat­forms such as Twit­ter or Face­book, an employ­ee should not refer to their employ­ment or employ­er on their account and to includ­e a dis­claimer to the effect that the views expressed on the account are per­son­al. 

Also, 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. 

Employers should also be careful not to engage in knee-jerk reactions to posts made by employees that adopt a different stance to that of the employer (i.e. disciplining or terminating them). 

A careful consideration of the circumstances is required, including the terms of the post and the context in which it is made, and employees should be afforded procedural fairness; any disciplinary action taken should be proportionate to the alleged conduct. 

For example, if their post included offensive or racist language, it could be grounds for a warning or dismissal, depending on the contents. However, simply stating a different opinion to the employer is usually going to be within an employee’s rights.

In some states, there is 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. 

With that said, the con­clu­sion in these states 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 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.

Further risks for employers

Those are some of the things to consider if you’ve got employers who want to express a difference of opinion, but what about some of the risks associated with trying to get employees to align with your company’s opinions?

For example, 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 those activities.

The answer 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.  

“Employers should be careful not to engage in knee-jerk reactions to posts made by employees that adopt a different stance to that of the employer.”

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. For example, a one-off information session might be deemed reasonable, but forcing an employee to change their email signature or post publicly  in support of the company’s stance on LinkedIn might not be considered reasonable. To be safe, it’s best to make such activities optional.

Cru­cial­ly, there might not even be a require­ment for employees 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 and 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 caus­es sig­nif­i­cant upset to employ­ees with an oppos­ing view, a direc­tion to attend (or remain) may not be reasonable. 

However, if an employ­er is going fur­ther 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 and such a direc­tion would like­ly be unreasonable. 

Employers also need to ensure that employees with a properly expressed contrary view are not subject to bullying conduct such as exclusion or gratuitous negative commentary from other employees, particularly those in management. 

The issue beyond the Voice

With com­pa­nies giv­ing increas­ing empha­sis to envi­ron­ment, social and gov­er­nance con­sid­er­a­tions and tak­ing a stand on var­i­ous social and polit­i­cal issues, there is increas­ing­ 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. 

Employers should be aware of the possibility of discussions in the workplace about social issues, particularly those on which the employer has taken a public stance, becoming heated or argumentative. 

While an absolute ban or prohibition on political discussion is likely not ultimately enforceable (especially when the employer itself has taken a public stance), the employer can insist any discussions between employees be conducted in a respectful, collegiate and professional way. 

Just because an issue is contentious and arguments about politics can inflame passion, that does not give employees the right to deviate from the usual standards of appropriate workplace conduct.  

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 not to be com­pelled by their employ­ers to act con­trary to their own per­son­al beliefs, so watch this space.

The information in this article is gen­er­al in nature and does not constitute specific advice.

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